Problematic Legal Causations of Death

Interacting with the Medical Examiner

When an attorney provides representation centering on death, problematic legal causation issues may arise over whether the actor's conduct is the legal cause of death. In most circumstances, this issue of causation is not a problem since the conduct can be directly linked to the actual harm intended. For instance, there is no problem in causation when an individual kills a victim by intentionally aiming and firing a gun at the intended victim. However, problems in causation of death may present themselves when the intended death occurs in an unintended manner or an unintended death occurs in an unlikely way.[1] These problems may arise when intervening physical events occur or third-party actors are involved which raise the possibility of superseding factors that cause separate fatal injuries. Furthermore, the victim may have multiple pre-existing medical conditions that may obscure the primary cause of death. This problem is likely when the death occurs months to years after the initial injury, and the association of the primary injury with the death becomes attenuated.

Problematic legal death causation issues are found in both criminal and tort cases. Criminal causation issues are present when the crime is defined by the result of an action.[2] For example, causation is important in criminal homicide culpability where individuals must not only act with the requisite mens rea, but also cause a death by their actions. Tort attorneys also face similar problems of legal causation, since in negligence claims plaintiffs must demonstrate actual harm as part of their burden of proof. Before arguing the case at trial, attorneys must assess the cause and manner of death in deciding whether the actions in question are the legal cause of death. Given that medical examiners determine the cause and manner of death, attorneys must carefully interact with medical examiners to understand fully the circumstances of the death and detect potential legal causation issues that impact their cases.

This article will review briefly the judicial approach to problematic death causation issues with particular emphasis on Tennessee case law. After this judicial review, the role of the medical examiner in certifying the cause and manner of death will be discussed. Following this discussion, potential limitations in the medical examiner's assessment of problematic deaths will be highlighted with practical advice on dealing with the medical examiner during the preparation of these difficult cases. With this better understanding of how the medical examiner determines the cause and manner of death, the attorney may more effectively identify problematic causation issues and better prepare the case for trial.

Judicial Approach to Problematic Causation Issues

In order to be liable for a death, a defendant's actions must be the legal causation of the harm. Legal causation is based on two principles, causation in fact and proximate causation.[3] Consequently, both causation in fact and proximate causation must be present before the defendant is held liable. The determination of causation in fact and proximate causation may be complicated by intervening events and actions.

Causation in Fact Determination

Causation in fact means that the actions actually caused the death. Most jurisdictions apply the "but for" test, which asks whether but for the defendant's actions would the death have occurred. Tennessee courts apply this "but for" test, holding that the defendant's action is the causation in fact if the injuries would not have occurred but for the conduct.[4] The "but for" test may not resolve cases where two independent causes occur that produce an identical harm.[5] For such situations, some jurisdictions have used the "substantial factor" test in tort cases.[6] Tennessee courts employ this "substantial factor" analysis as part of a three-prong test when determining tortious causation in fact. In assessing whether the negligent conduct is a substantial factor in the harm, courts may consider the following factors: the time interval between the action and the subsequent injury; the number of other factors that contribute to the harm and the extent of their effect in producing the harm; and if the actor's conduct created a harmless situation unless acted upon other forces for which the actor is not responsible.[7]

Proximate Causation Determination

If the causation in fact requirement is fulfilled, one must now determined whether proximate causation exists in order to hold the defendant's action liable.[8] Proximate causation is generally predicated on the concept of foreseeability. For criminal law, foreseeability may be defined in different ways. In some jurisdictions, criminal proximate causation is met if the defendant's actions were a sufficiently direct cause of the death where the ultimate harm can be foreseen as being reasonably related to the actions.[9] For the Model Penal Code, the harm must be of the same kind intended or risked and must not be too remote or accidental in assessing the defendant's culpability or gravity of the offense.[10] Tennessee case law for proximate causation in criminally negligent homicide requires evidence that the death was the natural and probable result of the defendant's unlawful actions.[11]

When dealing with tort cases, courts also generally use a foreseeability standard for proximate causation determination. As with criminal law, foresseability may be defined in various ways when adjudicating tort cases. For instance, foreseeability may be defined by whether the harm could have been foreseen by a person of reasonable intelligence.[12] Tennessee courts incorporate this foreseeability standard in a three-prong test for tort proximate causation.[13] First, the conduct must be a substantial factor of the harm. Second, there is no rule or policy relieving liability because of the manner in which the negligence resulted in the harm. Third, the harm arising from the action could have been reasonably foreseen or anticipated by a person of ordinary intelligence and prudence. The Restatement of Torts 2d  § 435 (1977) provides a different standard for foreseeability in which the actor may be relieved of liability if the court finds the negligent conduct highly extraordinary in bringing about the harm. As a final note for tort foreseeability, courts may hold a defendant liable if the general field of danger was foreseeable, not necessarily the specific harm.[14]

Complicating Intervening Events or Actions in Determining Proximate

Causation: Determination of proximate causation may be complicated by intervening events or actions of other parties which can potentially constitute superseding causes that break the chain of causation. Particularly problematic are intervening voluntary actions of either the victim or third parties. An example may be a victim's denial of life sustaining treatment for a treatable wound sustained during an attack. Taken to the extreme, these voluntary actions may constitute new intervening acts (novus actus interveniens) that preclude assigning causal responsibility to the attacker.[15] In general, courts have taken a different approach in which the defendant cannot escape liability for such intervening events unless the death is unforeseeable or unrelated to the initial injury. For example, in Ford v. State, 521 N.E. 2d 1309 (Ind. 1988), the court had to decide whether a Jehovah's Witness's refusal of a blood transfusion following a gunshot wound during a robbery constituted an intervening event that relieved an accomplice of felony murder. The court held that the refusal did not absolve the defendant of guilt since "the fact that other causes contribute to death does not relieve the actor from responsibility".[16] An individual who inflicts a wound is criminally responsible if the variation between the intended and final result is not so extraordinary as to be unfair in holding the individual responsible for the final result.[17] Consequently, the Ford court did not believe that the voluntary refusal of a blood transfusion by the victim sufficiently broke the chain of causation to relieve the defendant of criminal culpability.

Tennessee has adopted such an approach in criminal homicide when dealing with intervening events. In 1913, the Tennessee Supreme Court established the general causation rule that a defendant is held accountable for the consequences from a dangerous wound "whether the sequence be direct or though the operation of intermediate agencies dependent upon or arising out of the original cause".[18] In Letner v. State, 299 S.W. 1049, 1050-51, the state Supreme Court further addressed the role of intervening or superseding events.

If an injury caused by defendant contributed to the death, defendant is responsible, although a subsequent mortal wound inflicted independently by another also contributed thereto. Defendant's act or omission need not be the immediate cause of death; he is responsible if the direct cause results naturally from his conduct. The same is true if the direct cause is an act of the deceased himself reasonably due to the defendant's unlawful conduct. ... In other words, the defendant cannot escape the consequences of his wrongful act by relying upon a supervening cause when such cause naturally resulted from his wrongful act.

Based on this Tennessee criminal case law, the defendant can only escape culpability from intervening or superseding events if the death is so "unexpected, unforeseeable or remote" from the defendant's actions.[19 ] For tort law and possible superseding causes of harm, the court may hold that an intervening force is a superseding cause provided that this intervening force is unforeseeable at the time of negligence.[20] An example of such a standard is Tennessee tort law where liability is not relieved if the intervening act could be reasonably foreseen and the conduct was a substantial factor in causing the harm.[21] Additional guidance in determining whether intervening forces amount to superseding causes in tortious harm is found within the Restatement of Torts 2d  § 442 (1977) where six factors are listed in the assessment. First, was the harm of the intervening factor different from the actor's negligence? Second, was the harm or consequences from the intervening factor extraordinary? Third, was the intervening force operating independently of the situation created by the actor's conduct? Fourth, was the intervening factor due to a third party?

Fifth, was the third party's action wrongful? Finally, what is the degree of culpability of the third party's wrongful act? As seen by the nature of these factors, the adjudication of potentially superseding causes can be a very labor-intensive assessment of the facts and circumstances of the case.

The Role of the Medical Examiner in Assessing Causes and Manners of Death

Whether the intervening events or other party actions are truly unexpected, unforeseeable or remote and thereby break the chain of causation is a factual issue that is generally assessed by the trier of fact.[22] As part of this factual assessment, the trier of fact must evaluate the strength of association between the death to the defendant's conduct and any potential intervening events or actions. In order to assess this association, one must know the actual cause and manner of death. Given that the medical examiner determines the cause and manner of death, the medical examiner's findings may be critical in the legal proceedings involving problematic death causation.

A recent case demonstrating the significance of the medical examiner's role in problematic causation issues is Tennessee v. Bond, No. W2005-01392-CCA-R3-CD (Tenn. Crim. App. filed Sep. 20, 2006). In Bond, the defendant was convicted of felony murder for the shooting death of an armored truck guard. The defendant appealed the conviction based on the failure to prove proximate causation by claiming that the deceased's death was secondary to an intervening medical condition. The medical examiner listed the cause of death as urosepsis with a ruptured neurogenic bladder arising from paralysis due to a remote gunshot wound. The medical examiner testified that victim's death was not caused by failure to properly care for a urinary catheter nor other underlying medical conditions, including coronary artery occlusion, fatty liver, kidney damage or coumadin toxicity. The appellate court upheld the conviction based on the steadfast medical examiner's testimony that the death related back to the gunshot wound and the absence of contrary evidence.

As demonstrated by the Bond case, the courts may rely on the medical examiner for the cause and manner of death when faced with problematic causation issues. Consequently, it is important for the attorney to understand what the medical examiner means by the cause and manner of death. The cause of death is any injury or disease that leads to a physiological abnormality resulting in death.[23] Examples of causes of death include gunshot wounds, blunt force trauma, myocardial infarctions and hanging. There may be more than one injury or disease process for a given case. If this is the case, the major cause of death is listed as the primary cause of death with the other injuries or diseases labeled as contributory causes if they played a separate role in the death.

The manner of death explains how the death occurred based on the circumstances of the case and the findings at autopsy.[24] The manner of death may be classified as homicide, accidental, suicide, natural or undetermined.[25] In order to list homicide as the manner of death, the death must have occurred as result of a volitional act in which a human being kills another human being.[26] Note that this definition by medical examiners does not necessarily include evaluation of criminal intent. Thus, a medical examiner's ruling of homicide as a manner of death may not necessarily constitute criminal homicide in the eyes of the law.[27] An accidental death is a death occurring in an unintended manner. A suicide is defined as the intentional killing of oneself. A natural death is where the death is secondary to a naturally occurring disease. Finally, an undetermined death means that there is insufficient information of the circumstances surrounding the death to make an official ruling as to the manner of death.[28] It should be noted that the cause of death may also be listed as undetermined if insufficient information exists in terms of any injuries or disease processes associated with the death such as when only skeletonized remains are available for evaluation.

In determining the cause and manner of death, the medical examiner performs an autopsy trying to document injuries or other disease processes that may be the cause of death. The autopsy can consist of only an external examination of the outer body surface or a complete autopsy with evaluation of the internal organs. For autopsies with potential legal implications, a complete autopsy is critical. The anatomic findings of the autopsy must be correlated with other information when issuing a ruling as to the cause and manner of death. This information includes potential microscopic examination of internal organs, tissue microbiological cultures, toxicology, previous medical history, investigator reports of the scene, and forensic laboratories studies such as firearms. By correlating the results of the autopsy with this ancillary information, the medical examiner can provide a comprehensive evaluation of the death and try to ensure an accurate cause and manner of death ruling.

Problems Faced by the Medical Examiner in Determining the Cause and Manner of Death

Although the above description of the medical examiner's job may sound easy, problems exist that complicate the death investigation. Just as the legal system may struggle with problematic causes of death, the medical examiner also may encounter several problems that produce a degree of potential uncertainty in determining the cause and manner of death. One big problem is that the body may react in a similar fashion to various injuries or disease processes. This reaction is basically tissue damage, inflammation and either resolution or scarring. As a result, pneumonia findings may be identical whether caused by a naturally occurring community acquired infection or exposure to toxic fumes from an arson fire. In such cases, a careful review of the clinical history with evaluation of time frame of the alleged injury to the development of the pneumonia may assist in determining the true cause of the pneumonia. Unfortunately, the success of this review is limited by the thoroughness of pre-mortem clinical history documentation.

A second problem occurs when multiple injuries or diseases are present for a deceased individual. When multiple possible causes of death are present, it may be extremely difficult to distinguish the injury or disease process that is the primary cause of death from other contributory factors or incidental findings that did not contribute to the death. The above discussed Bond case provides a good illustration of this problem where the initial firearm injury is complicated by either preexisting or subsequent medical conditions. Another example is an elderly person with multiple preexisting medical problems who is involved in a motor vehicle accident and dies month later. In this situation, the medical examiner must decide whether the death is too unexpected or remote from the motor vehicle accident injuries for the accident to be ruled as the cause of death. The medical examiner's decision may mean the difference between a natural death or criminal vehicular homicide depending on the circumstances of the accident. This problem is particularly likely if the motor vehicle accident injuries are minor or there is a gradual decline in health after the accident with a vague link to the injuries sustained in the accident.

A third problem centers on the classification of the manner of death. For some manners of death, there exists nonuniformity within the medical examiner community with different opinions predicated upon various philosophical views, training or office policy. An example of this problem includes persons wishing to commit suicide by waiving a toy gun and having the police shoot them. Some medical examiners might classify the manner of death as suicide while others rule the death as a homicide. Furthermore, the medical examiner's manner of death may not match the viewpoint of the legal profession, particularly concerning matters of intent. An example is a motor vehicle accident where an individual is killed and the other driver is intoxicated or driving recklessly. Under the legal system, this incident would constitute criminal vehicular homicide. However, the National Association of Medical Examiners supports a ruling of accident with notation that criminality is best left to the legal system.29 As if this nonuniformity and discrepancies with the legal system were not enough, the validity of the manner also may be compromised by the absence of pertinent information at the time of the ruling. Consequently, the manner is not engraved in stone and can be changed if additional information is discovered concerning the circumstances of the death.

A final problem for the medical examiner is the degree of certainty required for legal proceedings. In general, courts are in agreement that an opinion of "possible" for expert testimony is inadequate.[30] Tennessee holds this approach in that an opinion of mere possibility is insufficient for a finding of fact.[31] Instead, a reasonable degree of medical certainty is the standard that most courts require for evidence. But problems arise over what constitutes a reasonable degree of medical certainty. Some courts hold that this phrase means "more probably true than not" or reasonable probability.[32] Other courts reject this terminology, with one court requiring "sufficient certainty" in making a medical judgment.[33] Consequently, confusion exists concerning the meaning of a reasonable degree of medical certainty. This confusion was even noted in a previous Tennessee Bar Journal article that highlighted that physicians may hold different concepts of a reasonable degree of medical certainty or give equivocating testimony based on different levels of probability.[34] To complicate matters further, the National Association of Medical Examiners' guidelines to standardize manner-of-death reporting support various degrees of certainty such as a preponderance of the evidence for civil litigation and a clear and convincing standard involving homicides.[35] Needless to say, careful communication between the attorney and the medical examiner is needed to ensure both parties understand the degree of certainty that the medical examiner holds for the cause and manner of death.

Practical Advice for Attorneys Interacting with the Medical Examiner in Problematic Death Cases

Given the above problems that might complicate the medical examiner's determination of the cause and manner of death, the attorney must be cognizant of these issues when dealing with problematic legal causation cases. Awareness of these problems is important in preparing cases where the trier of fact must decide whether the defendant's actions were truly the cause of death. Without an understanding of the problems that potentially limit the cause and manner of death ruling, the attorney may fail to appreciate key arguing points of legal causation that either support or weaken their case. Consequently, the attorney must effectively interact with the medical examiner to ensure full understanding of the cause and manner of death ruling. In order to promote this effective interaction, the following practical advice is offered.

Meet with the medical examiner concerning problematic legal causation issues before trial. This meeting does not just involve the prosecution.

The defense attorney should also meet to discuss issues dealing with the cause and manner of death. Remember the medical examiner should be a third party neutral in investigating the death. However, a word of caution is needed before arranging for such a meeting. The attorney needs to be aware of potential privacy issues and therefore should get consent of the next of kin for release of the autopsy results or a court subpoena permitting such disclosure.[36]

Discuss the factors that impacted the ruling for the cause and manner of death. This discussion might bring to light additional information that was not available to the medical examiner prior to the ruling. For instance, were the medical records incomplete or family information concerning the activities and medical problems of the deceased prior to death unknown at the time of the ruling?

Review the findings with the medical examiner to determine if the autopsy was sufficient in excluding all possible causes of death. For example, did the autopsy include special dissection for hidden injuries such as a posterior neck dissection to exclude a neck fracture when no other blunt force trauma was noted in a motor vehicle accident? During this review, assess also whether the findings are truly specific for the cause of death. For instance, pinpoint or petechial hemorrhages of the eyes and face are not specific for strangulation, and thus, not conclusive evidence of asphyxiation deaths.[37]

Ask for the rationale behind the primary cause of death, particularly when multiple injuries or disease processes are identified at autopsy. If contributory injuries or disease processes are present, try to understand their role in causing the death. If truly significant, these contributory factors may raise the possibility of superseding events that break the chain of causation. For example, a person may die with several potentially fatal conditions discovered at autopsy, such as atherosclerotic coronary artery and a high methadone blood level. In such a case, the issue arises whether the individual died from cardiac sudden death due to the atherosclerotic coronary artery disease with incidental drug use or an acute methadone drug overdose with incidental atherosclerotic coronary artery disease. This distinction will mean the difference between a natural versus an accidental death. The ultimate decision may center on the blood level of the drug and the chronicity of drug use. If the decedent had chronically used the methadone for treatment of heroin abuse, drug tolerance is possible, and thus, a relatively high blood concentration of the drug may not be lethal for this individual. In which case, the cause of death may be listed as atherosclerotic coronary artery disease with the manner natural. This problem is particularly encountered for opiate drugs with a wide range of therapeutic levels, such as morphine, methadone and fentanyl.

Consider pertinent medical conditions not readily detected at autopsy that can explain the death. As part of this consideration, determine what special ancillary studies are necessary to confirm this medical condition. These medical conditions can include genetic or biochemical abnormalities.

For instance, an infant with multiple fractures raises the possibility of osteogenesis inperfecta, which is a genetic disorder causing brittle bones.[38] Detection of this genetic disorder may require special genetic testing not routinely performed at autopsy.[39] As for biochemical abnormalities, recent research has explored the relationship of brain dopamine receptors and the association with cocaine induced excited delirium syndrome.[40] Excited delirium deaths are associated with sudden deaths following violent struggles.[41] In such sudden deaths involving police custody, cocaine or methamphetamine is usually involved.[42] Such police custody deaths raise the possibility of excessive force with possible criminal or civil liability. If excited delirium is ruled as the cause of death, the police may be exonerated of excessive force use. A procedure is currently available for measuring dopamine receptors in fresh frozen brains to determine whether the death may be associated with cocaine induced excited delirium.[43] Consequently, in cases involving police custody sudden death during or following a violent struggle, fresh brain submitted for dopamine receptor analysis may be prudent in order to support or refute claims of excessive police force.

Look for controversial forensic pathology issues where different medical examiners may disagree as to the significance of the autopsy findings. An example is the significance of subretinal hemorrhages in reported shaken baby syndrome. Some physicians believe that the finding of subretinal hemorrhages is pathognomonic of shaken baby syndrome.[44] Others disagree given the association of subretinal hemorrhages with other separate etiologies including resuscitation efforts.[45] If dealing with such controversial issues, get experienced medicolegal consultation.

Determine what the medical examiner's degree of medical certainty is concerning the cause and manner of death. Does the medical examiner mean possible, probable or to a reasonable degree of medical certainty?
This advice hopefully will maximize communication between the attorney and the medical examiner during preparation of problematic legal causation issues. Only by such open and careful dialogue can the attorney ensure full understanding, including any limitations, of the cause and manner of death.

Conclusion

There are problematic causes of death that the legal system struggles with when deciding a defendant's liability. In order to be liable, the actions must be the legal cause of death by being the causation in fact and the proximate cause of the fatal injuries. Each jurisdiction has established case law in deciding whether causation in fact and proximate causation exist. For causation in fact, most jurisdictions use the "but for" test or the "substantial factor" test when intervening events or actors are present. The definition of proximate causation varies but in general is broadly predicated on foreseeability. In Tennessee criminally negligent homicide cases, proximate causation is met if the death is the natural and probable result of the defendant's actions. In addition, foreseeability also is important when intervening events or actions occur that might constitute superseding causes of death. This foreseeability standard is evident in Tennessee criminal and tort case law. To be culpable of criminal homicide in Tennessee, a death with intervening events or third-party actions must not be too unexpected, unforeseeable or remote from the defendant's actions. For Tennessee tort liability, the defendant's actions must be a substantial factor in causing the harm with any intervening events reasonably foreseen.

By aiding the trier of fact in their determination of whether the defendant's actions are the actual cause of death, the medical examiner plays an important role when certifying the cause and manner of death. Like the legal system, the medical examiner encounters issues with problematic deaths that include nonspecific tissue reactions, multiple competing autopsy findings, nonuniformity over manners of death, and various degrees of certainty. In order to understanding fully these problems, the attorney should meet with the medical examiner to discuss the factors leading to the ruling, review the findings of the autopsy and ask for the rationale behind the cause and manner of the death. The attorney should also research any other pertinent medical complete evaluation of the potential legal causation issues and ensure effective advocacy in complicated deaths.

Notes

1. Stanford Kadish & Stephen Schuhofer, Criminal Law and Its Processes, Cases and Material 517 (Aspen Law and Business 7th ed. 2001).

2. Id.

3. S. Sandy Sanbar, Marvin Firestone, Sal Fiscina, Theodore Leblang, Cyril Wecht & Miles Zaremski, Legal Medicine 254 (Mosby Publishing Co. 7th ed. 2007).

4. Hale v. Ostrow, 166 S.W. 3d 713, 718 (Tenn. 2005).

5. Sindler v. Litman, 887 A. 2d 97, 113-14 (Md. App. 2005).

6. Id at 114.

7. Restatement of Torts, 2d  § 433 (1977).

8. Hale, 166 S.W. at 718-19.

9. People v. Kibbe, 321 N.E. 2d 773, 776 (N.Y. 1974). In Kibbe, The defendants had robbed the deceased and left him stripped of his outer clothing in zero-degree weather alongside a road at night. A separate vehicle hit the victim and killed him. The court upheld the conviction by stating that the defendants' action were a sufficiently direct cause of death of the victim since it was foreseeable that the victim would enter the road and possibly be hit by a vehicle or freeze to death if he remained in place along the side of the road.

10. Model Penal Code  § 2.03 (2) (b) and (3) (b)

11. Tennessee v. Farner, 66 S.W. 3d 188, 203 (Tenn. 2001).

12. See Knight v. Flanary & Sons Trucking Inc., No. No. W2005-01412-COA-R3-CV (Tenn. App. Ct. filed Jun. 29, 2006).

13. McClenahan v. Cooley, 806 S.W. 2d 767, 775 (Tenn. 1991).

14. Sindler, 887 A. 2d at 115.

15. Sanford Kadish, Blame and Punishment: Essays in the Criminal Law 140-145 (MacMillian Publishing Co. 1987).

16. Ford v. State, 521 N.E. 2d 1309, 1310 (Ind. 1988)

17. Id at 1311.

18. Odeneal v. State, 157 S.W. 419, 421 (Tenn. 1913). In Odeneal, the defendant appealed his conviction of murder, claiming that a surgical operation for a gunshot wound was the immediate cause of death of the victim. The court upheld the conviction, stating that where the accused inflicts an injury requiring surgery, he is culpable for the risks associated with the surgery provided the surgeon has exercised reasonable skill.

19. See Tennessee v. Bond, No. W2005-01392-CCA-R3-CD (Tenn. Crim. App. filed Sep. 20, 2006).

20. Sindler, 887 A. 2d at 115.

21. Supra note 9 at 775.

22. Id.

23. Vincent DiMaio & Domineck Dimaio, Forensic Pathology 3 (CRC Press 2nd ed. 2001).

24. Id at 3-4.

25. Id.

26. Randy Hanzlich, John Hunsaker & Greg Davis, National Association of Medical Examiners Manner of Death Classification 6 (1st ed. Feb. 2002) at www.Charlydmiller.com/L1B03/2002NAMEmannerof death.html (Sept. 5, 2007).

27. Id.

28. Supra note 23 at 5.

29. Supra note 26 at10.

30. Supra note 3 at 366.

31. Lindsey v. Miami Dev. Corp., 689 S.W. 2d 856, 862 (Tenn. 1985).

32. Supra note 3 at 366.

33. McMahon v. Young, 276 A. 2d 534, 535 (Pa. 1971).

34. John Day, "Do you believe in magic?" Tort Law Topics 38 Tenn. Bar J. (Jan. 2002).

35. Supra note 26 at 4-5.

36. The Tennessee Supreme Court has held that a physician breaches an implied convenant of confidentiality when divulging medical information by informal conversations without the patient's consent. See Givens v. Mulliken ex rel. Estate of McElwaney, 75 S.W. 3d 383, 409 (Tenn. 2002). In addition, Tennessee statutory law prohibits the medical examiner from the unauthorized release of photographs, videotapes or audio recordings without the express written consent or direction of the next of kin. See Tenn. Code Ann.  § 38-7-119.

37. Werner Spitz & Daniel Spitz, Spitz and Fisher's Medicolegal Investigation of Death 811 (Charles C Thomas Publisher 4th ed. 2006).

38. Vinay Kumar, Abul Abbas & Nelson Fausto, Robbins and Cotran Pathologic Basis of Disease 1279-81 (Elsevier Saunders Publishing 7th ed. 2005).

39. Univ. of Wash. Dept. of Pathology, Guidelines for Laboratory Testing for Osteogenesis Imperfecta at www.Pathology.Washington.edu/Clinical/Collagen/Guidelines/Osteogenesisphp (Sep. 9, 2007).

40. A. James Ruttenber, Janet Lawler-Heavener, Ming Yin, Charles Wetli, W.Lee Hearn and Deborah Mash, "Fatal Excited Delirium Following Cocaine Use: Epidemiologic Findings Provide New Evidence for Mechanisms of Cocaine Toxicity." 42(1) J. Forensic Sci. 29-30 (1997).

41. Supra note 23 at 500.

42. Id.

43. See Deborah Mash, John Pablo, Qinjies Ouyang W. Lee Hearn and Sari Izenwasser, "Dopamine Transport Function Is Elevated In Cocaine Users," 81 J. Neurochem. 292 (2002).

44. Supra note 23 at 361.

45. Id.


Michael Panella, M.D. DR. MICHAEL PANELLA is an associate medical examiner at the Allegheny County Medical Examiner’s Office in Pittsburgh. He received his law degree, cum laude, at the University of Pittsburgh School of Law in 2005. He was elected into the Order of the Coif and served as a managing editor of the Journal of Law and Commerce. Panella received his medical degree in 1989 from the Medical College of Pennsylvania where he graduated summa cum laude. He has completed postgraduate medical training in internal medicine, anatomic/clinical pathology, dematopathology and forensic pathology. He is a proud member of the Tennessee Bar Association.