DEADLY CONFLICTS: CONFLICTS OF INTEREST

IN DEATH INVESTIGATION SYSTEMS

Introduction

Death investigation systems in North America have evolved from an interesting mix of traditions originating over a thousand years ago in England. The evolution has been chaotic and the end result a myriad of "systems," few of which are efficient, effective, or even possessing the right content. Why is this so? The answer is simple: An efficient, effective, and content-oriented death investigation system does not serve the beneficiaries of such a system, such as coroners, medical examiners, and justices-of-the-peace, whose income and political power reside in the industry of human death. Physicians, in general, should have railed against this abominable non-system decades ago, but such was not the case. A death is a failure, a failure to sustain life. Physicians have traditionally shied away from death.

Given a situation where death is such an avoided event, it only follows that abuses and conflicts within the systems that minister to the dead are often overlooked. In this article we explore some of those abuses and conflicts.

The Coroner

The coroner is a judicial office uniquely styled to English origin, which later migrated to areas of the world influenced by England. The first coroner appeared in England in 925, when a grant for the coroner's office was given by King Athelstane. Formalized in 1194, three knights and one clerk were elected by the knights and freeholders in every county as keepers of the pleas of the crown. These crown representatives, later called crowners, eventually answered to the name of coroner (Spitz and Fisher, 1980). There being no income tax in 12th Century England, the crown derived substantial income from crime and death, and charged coroners with collecting these funds when sheriffs (shire + reeve = county revenue officer) were relieved of these duties in 1194 due to corruption. Coroners were unpaid and unpopular. Fines were levied upon non-performing coroners and their land could be seized if they failed to deliver revenues to the crown (Mant, 1987). A land ownership requirement for English coroners remained in force until 1926, when it was ended by the Coroners' Amendment Act. Although originally ordered to perform inquisitional and administrative duties within the county, the coroner's duties eventually concentrated upon the investigation of death-related matters.

Early English coroners were primarily responsible for collecting three types of revenue connected with deaths and the "first finder" of a dead body was required to summon the coroner. Lex murdrorum (murder) taxes were a product of the Norman invasion. Local lords were taxed for not maintaining sufficient order in the killing of those of Norman descent by the English. The lords generally passed the cost of this tax on to the community. One of the duties of the coroner was to establish the "Englishry" of the killer and the victim to determine the amount of the murdrorum tax, if any. The murdrorum tax was repealed in 1340 (Mant, 1987). Also, the coroner was required to convene a coroner's jury to determine the "deodand" forfeiture amount in death cases. The forfeiture by deodand, which was eliminated in 1846, gave over to the crown the instrument that caused death. If a victim was pushed into a water well and killed, the jury would determine the value of the well as the forfeiture amount. Juries had considerable leeway in these decisions, such as determining the deodand as being an entire horse team and wagon or the single wagon wheel that ran over a decedent (Mant, 1987). Third, a community could be fined if a murder was committed during the day and a hue and cry was not sent up in time for the murderer to be apprehended. Since murderers could readily escape at night, many coroner's juries found that a murder occurred during hours of darkness so that the community would not be liable for the fine (or they could move the body to a neighboring community).

Upon creation of the office of justice of the peace in the late 13th century, the office of coroner declined in importance, as its duties became more narrow and office holders were of more questionable character (Mant, 1987). One of the most persistent and questionable elements of this system that persists to this day is the notion that the cause of death (medical reason - heart attack, stab wound, etc.) and the manner of death (judicial reason - homicide, suicide, accident, natural) may be determined solely by an external examination of the body of the decedent, an examination of the scene of death, and interviews of persons involved (Mant, 1987). Near the end of the 15th century, some measures were taken to pay coroners for their services, but unless obvious outside signs of wounds were noted on the body of a deceased person, magistrates refused payment and accused coroners of conducting frivolous inquiries merely to gain income.

The coroner system in England remained in disrepute and disrepair until the end of the 19th century, when several reforms were undertaken. The procedure of electing coroners by ballot was terminated in 1886. The Coroners' Act of 1887 and the Coroners' Amendment Act of 1926 finally clarified coroner's duties. Also, the 1926 amendment specified that a coroner must be minimally qualified as a barrister, solicitor, or a medical practitioner with at least five years standing in the profession.

Great Britain's influence around the world was substantial, and it brought the coroner system to many distant lands, including the United States of America.

The Medical Examiner

Reasoning that medical science had come a long way in the past 500 years, a proposal was advanced in Massachusetts that the office of coroner be abolished and replaced with what came to be called a medical examiner system. The medical examiner differed in two ways from the coroner. First, the medical examiner was to be appointed rather than elected and second, the medical examiner must be a physician. Since those early beginnings, the system, or rather non-system of questioned death investigation in North America has evolved to the extent that no two systems are exactly the same in any state or province. Indeed, in some states, such as New York, the death investigation system differs from county to county.

The Death Investigation Non-System

Today, there are statewide and provincewide medical examiner systems, district medical examiners, county medical examiners, county coroners, district coroners, and provincewide coroners, among other arrangements. Texas uses county or district medical examiners in metropolitan areas and justices of the peace, generally persons without a legal or medical background, to inquire into questioned deaths, in rural areas. Seventeen states have mixed coroner and medical examiner systems in a variety of configurations. Nevada and Kansas have district coroners, and nine states have county coroners (Combs, Parrish, and Ing, 1992). Coroner qualifications vary widely in the U.S., from no statutory qualifications in Alabama and Arkansas to qualification as a licensed physician in Kansas, Ohio, and in counties of over 8,000 population in North Dakota . Parish coroners in Louisiana must be licensed physicians, "unless none will accept the office" (Combs, Parrish, and Ing, 1992). Most states using a coroner system, however, set minimal qualifications, generally a minimum age (18-26), minimum residency (1-2 years), and, occasionally, education (usually high school). Although coroners are elected to office in most jurisdictions, some, such as Nebraska, designate certain office-holders, such as the county attorney or sheriff, as coroner, and others, such as North Dakota, appoint coroners through the board of county commissioners. Some states, such as Washington, expressly prohibit persons engaging in occupations that create obvious conflicts of interest, such as practicing morticians, from serving as coroners. The emerging discipline of forensic nursing has caused increasing numbers of registered nurses to be elected to coroner positions in the United States.

Widely varied in its medicolegal investigation systems, it is perhaps in Canada where the most significant advancements are being made in the investigation of death. In Canada's twelve provinces and territories, four use the medical examiner system for the investigation of questioned deaths, and eight use the coroner system. Some Canadian chief (provincial/territorial) coroners have legal backgrounds while others are physicians. Although most Canadian jurisdictions are stable in the preference of the profession of coroners, Quebec has moved from a physician to an attorney as chief coroner. All appointments to coroner positions in Canada must be approved by the Lieutenant Governor in Council, the representative of the British Crown. Some Canadian coroner's offices, such as those in Ontario, New Brunswick, and British Columbia have used the coroner's inquest as a vehicle for the promotion of public awareness and regulation in safety and health issues. For example, Ontario's Office of the Chief Coroner, through 381 local coroners, who are all physicians, annually investigate over 28,000 deaths, coordinate over 7,000 autopsies, usually conduct nearly 200 inquests into over 200 deaths, and usually make more than 1,000 recommendations concerning public health and safety. Of these recommendations, over two-thirds are generally implemented dealing in everything from dangerous toys to hazardous intersections. Most other coroner systems throughout the world are so beset by poorly qualified individuals, low budgets, political interference, conflicts of interest, and/or workload, that the type of preventive programs practiced by these Canadian agencies is impossible.

Conflicts of Interest

Over the past ten years, research was undertaken after reviewing several graduate student and faculty research papers conducted on the death investigation systems in Georgia and Florida during the period 1987-1994. In several instances, this research pointed to several recurring and disturbing themes concerning conflicts of interest in questioned death investigation systems. The two most alarming studies involved south Georgia counties where, in one county a twenty year study was made of all coroner case reports. The purpose of the study was merely to review the reports to determine if, in the opinion of the researcher and her faculty advisor, investigations were being conducted in a professional manner. In this study, a clear pattern emerged where it became apparent that obvious suicide cases (e.g., contact gunshot wounds to the head) were routinely being classified as accidental deaths for white decedents (but not for blacks). In another study, which involved interviews of former Georgia coroners, complaints were raised by one former coroner that the present coroner, a mortician, used to badger the former coroner to find out how much money a decedent had so that an appropriately-priced funeral could be arranged. In a more recent study of the Georgia coroner system, significant resistance was met in even disclosing the primary occupations of Georgia coroners. The Georgia Coroner's Association would not respond to requests for this information, and individual coroners who were licensed morticians would frequently respond with "Why do you want to know?" or "What business is it of yours?" Over half refused to provide the information. For those counties where the information was refused, the occupation of the county coroner was determined through other sources, such as police or sheriff's offices.

In broadening the scope of potential conflicts of interest in the matter of questioned death investigation, three themes emerged as suitable for inquiry, as follows:

a. Coroners or medical examiners engaged in these public positions as part-time practitioners that steer business into their full time occupation for profit. Examples include medical examiners that are pathologists operating pathology laboratories that contract tests to their own laboratories and coroners that are morticians steering mortuary service business to their firms.

b. Coroners that may agree to present "findings" of a certain manner of death (accident rather than suicide) if the family of the decedent uses the coroner's funeral home for services or, in the case of one study that included inquiries in three states (Georgia, Alabama, and Kentucky) opts for a more costly casket and funeral in appreciation for collecting accidental death insurance benefits (versus no money in a suicide finding).

c. Coroners that may mask the cause and manner of death to serve to the advantage of their full-time practice or organization. Examples include the sheriff-coroner investigating a county jail inmate death, the emergency department nurse-coroner investigating an emergency department death or a paramedic-coroner investigating a death in an ambulance.

In beginning a wider set of inquiries, interviews were conducted in several states between 1993 and 1999 concerning these issues. In many states, the types of questions generated by this research could be summarily answered at the state level, but in others, decentralization of policy is so complete that a detailed county-by-county and even city-by-city inquiry was required.

This study concentrated only upon coroner systems in the United States. Twenty eight states use coroner systems in the U.S.A., while all others and the District of Columbia use the medical examiner system. Eleven states use a form of coroner system exclusively, while 17 have a combination of coroner and medical examiner systems.

Generally, during the research, the potential conflict of interest generated by a death in an emergency department or ambulance where the coroner is an emergency department nurse or paramedic was largely dismissed by those interviewed because of the nature of the job, which is to preserve and save life. Respondents unanimously stated that if a questioned death situation arose at the facility where the coroner was employed as a nurse or paramedic, it would be ethical and logical to bring an a disinterested coroner (e.g. from another jurisdiction) to investigate. In fact, this procedure is policy in several states.

The conflict concerning morticians serving as coroners, however, generated considerable controversy. Most state representatives interviewed acknowledged that the role of coroner and mortician is clearly an ethical conflict. In addition to the above cited reasons, an additional conflict of interest issue also emerged from the national interviews: Mortician-coroners will tend to avoid having an autopsy performed because of pressure from the survivor-customer of the mortician and/or because an autopsy makes embalming difficult.

Morticians as Coroners

When focusing upon the potential for conflicts of interest of morticians as coroners, first in Georgia and then throughout the United States and Canada, it was interesting to note that about half of the Georgia elected coroners were morticians. Georgia has the highest number of counties among all US states except Texas (Texas has 254 counties, Georgia 159). Further research disclosed that of the just over 3,100 counties in the USA, some 2,076 counties (more often than not rural) use elected coroners and among those, about 500 (24%) are also licensed morticians.

My contention was and is that being a practicing mortician AND a government officiator of death is a conflict of interest. As one coroner put it, "It's like being the only mechanic in town with a wrecker." This conflict of interest takes several forms. First is the issue of competition. If a coroner is at a death scene as the official public investigator, s/he is also "handy" as a private business operator in the event the survivors do not have a mortician in mind. California apparently recognized this when its Attorney General issued an opinion that a mortician could not be a coroner unless s/he was the sole funeral home in the county. This seemed to address the "competition" angle. A Federal lawsuit was filed by a mortician in Worland, Wyoming against the other county funeral home (which employed the county deputy coroner) in a civil rights action claiming that the competitor funeral home/coroner was steering more wealthy clients to his funeral home, among other things.

Other conflict of interest issues also emerge where survivors may enter into a conspiracy of silence with a mortician/coroner. For example, in a suicide by handgun, the coroner may declare the death an accident on the death certificate (the revolver accidentally discharged as the decedent was cleaning it). This may have important survivor's insurance outcomes, as well as emotional, public reputation and religious issues. In gratitude, the survivors may opt for the deluxe funeral package, etc. A few states simply forbid morticians from serving as coroners, such as Washington State. Wisconsin does not preclude morticians from serving as elected coroners, but does prohibit anyone serving as a coroner from entering into any contractual arrangement with the family of a decedent where the coroner is involved as an officiator of death. Needless to say, there are no mortician coroners in Wisconsin. There are other issues as well, such as the coroner having access to the financial records of a decedent in the furtherance of a death investigation.

When the findings of this research on one occasion before the American Academy of Forensic Sciences, I was approached by a coroner who was also a mortician and an amazing exchange took place between us. He cited a case where a man committed suicide with a handgun. The man was an abusive batterer and an alcoholic, regularly beating his wife and children. His wife bravely put up with this behavior for almost 20 years "for the sake of the family and the children." Now that this creep killed himself, the wife gets no life insurance due to a suicide clause and being a stay-at-home Mom with four children, has few job skills outside the home. She will become a ward of the state and will lose her home to foreclosure. However, if he died of an accident, she would get a double indemnity insurance payment of $200,000, which is enough to pay off the mortgage and other bills. This means she can be self-sufficient and not get evicted. The coroner told me that after putting up with all that abuse for twenty years, she deserved some relief. He told me that "that big ol' insurance company can afford it." He called the ruling of an accidental death "contextual justice" and that the sheriff agreed with him, as did other community members that knew of this woman's situation. Now, this exchange does not speak directly to the coroner being a mortician, but does raise some fascinating ethical issues concerning the role of the coroner.

Although a few states (four) using coroner systems acknowledge in their policies (statutes or Attorney General opinions) that it is a conflict of interest for a practicing mortician to also serve as a coroner, the vast majority do not. However, both intuitively and as a result of research, it appears clearly the dual role of practicing mortician and public officiator of the cause and manner of death are conflicting roles to the detriment of the public good.

Note

The American Journal of Forensic Medicine and Pathology frequently contains excellent articles on the history and development of medicolegal investigation systems throughout the world.

References

Combs, D. L., Parrish, R. Gibson, and Ing, Roy. Death Investigation in the United States and Canada, 1992. Atlanta, 1992.

DiMaio, Vincent, ed.. The American journal of Forensic Medicine and Pathology.

Mant, A. Keith. "Forensic Medicine in Great Britain." The American Journal of Forensic Medicine and Pathology 8 (1987):354-361.

Spitz, Werner U., and Fisher, Russell, S. Medicolegal Investigation of Death. 2d ed. Springfield, IL, 1980.