TBA Law Blog


Posted by: Andrew Beatty on Jul 1, 2018

Journal Issue Date: Jul 2018

Journal Name: July 2018 - Vol. 54, No. 7

If ‘Suicide’ Is on a Loved One’s Death Certificate, You Can Now Seek to Change It

According to the Tennessee Department of Health, during calendar year 2016 1,631 Tennesseans died as a result of drug overdoses.[1] Tragically, one of them was our 24-year old son, Alex. My wife, Liz, and I adopted him from a Bulgarian orphanage shortly after the fall of the Iron Curtain. The emotional horror of June 11, 2016, and what we faced thereafter will haunt our family forever. I often wonder if the flashbacks of looking into my lifeless son’s eyes, the throngs of first responders, police, medical examiner investigator, the questions, and friends arriving in tears will ever stop.

Under Tennessee law, an autopsy may be performed if a death occurs under certain circumstances.[2] Piled on top of having to experience a son’s death was the medical examiner’s determination of the manner of his death. “Suicide” is indelibly etched in box 30 of Alex’s death certificate. Problem is, Alex did not commit suicide.

I know what you’re thinking. The grieving parents. Too upset to face reality. Too blind to see the truth. In denial. Ashamed. Afraid of being labeled a bad parent … What’s the big deal? He was a college student. Few assets. Nobody would ever know. Leave it alone. Move on … The big deal was that it is a lie. Alex’s life and legacy deserve the truth. Everyone’s does.

“When you are going through hell, keep going.”
— Winston Churchill

While researching what we could do to change the manner of death on Alex’s death certificate, Liz and I learned that in Tennessee a medical examiner’s determination of manner of death is final and that no formal legal procedure was available to change it.[3] Liz contacted the medical examiner twice by phone and made her best case, submitting a 50-slide PowerPoint containing compelling evidence as to why Alex did not intend to kill himself; his death was accidental.

Liz Beatty holds a picture of her son Alex as she informs the President's Opioid Commission task force in Chattanooga about why there has been an increase in overdose deaths in individuals with long-term addiction issues. Submitted photo.

Alex had a documented 10-year history of addiction to drugs and alcohol, complicated by a medical history that included multiple concussions, psoriatic arthritis, anxiety, depression, attention deficit disorder and trouble sleeping. Over the years, he was prescribed various medications for those infirmities, and he became dependent on some of them. To feed his addiction, he escalated to improperly taking and combining dangerous medications, to the point that in the weeks before he died he was purchasing some pills off the street.

Through his extensive travels, Alex made close friendships with other young people whom he would connect with at concerts across North America. At the time of his death, Alex had plans to join his friends for concerts in Denver and Atlanta and made Airbnb reservations for his group the week before he died. He was six months short of graduating from MTSU with a degree in film and video production and was looking forward to the “real world.” He purchased a dozen OxyContin 30 mg. pills on the day before his death. Most patients are prescribed the lowest dosage (.5 mg.) to start because of “Oxy”s” high addictive potential. Alex had no concept of dosage and had never taken OxyContin before. He took only one of the dozen he bought — along with a Xanax. When he went to sleep on June 10, he did not mean to kill himself. He just wanted to fall asleep.

“When it is dark enough, you can see the stars.”
— Ralph Waldo Emerson

When the medical examiner who performed Alex’s autopsy refused our request for an in-person meeting to allow us the chance to discuss our evidence, we were downtrodden. We decided that we did not want any other family to run into a brick wall to get a death certificate changed if they disagree with a suicide manner of death determination. With the opioid crisis what it is in Tennessee, we concluded that many more families might find themselves in the same situation with no recourse.

Under Tennessee law, determination by a county medical examiner that a manner of death is suicide can only be changed by the medical examiner who performed the autopsy.[4] Until June 13, 2017, there was no formal process in law by which next of kin could dispute the medical examiner’s determination that the manner of death of their loved one was by suicide. There was no process for the family to present additional information that might change the medical examiner’s opinion that their loved one’s manner of death was suicide and get the manner of death box changed to either “accidental” or “undetermined.” There was no obligation for a medical examiner to receive or consider other evidence or even respond to the concerns of a grieving family.

“Things work out the best for the people who make the best of the way things turn out.”
— John Wooden

Liz and I persuaded Williamson County legislator Rep. Glen Casada to introduce a bill to change all that. The comic relief in helping get the bill passed was Liz and I posing as lobbyists. Now, in full disclosure, I have been a registered lobbyist for several years on health issues, but to say that I lobby for a living is a major stretch. For the benefit of persons in my age bracket, I describe my lobbying along the lines of the popular 1960s television show, Mutual of Omaha’s Wild Kingdom. I compare myself to Marlon Perkins. I’m all safe in the jeep with the 12-gauge while the real lobbyists I work with are like Jim Fowler, the burly adventurer who wrestled with ’gators in neck-deep bogs. Liz and I received a lot of magnificent help from those “real” lobbyists, including an opportunity one day to “speed date” 17 members of the state senate in the Legislative Plaza cafeteria! Liz and I had our elevator speech down to three minutes flat. I hit the bill number, what it did, and when it would be considered in their committee. Liz highlighted the emotional aspect by relating our personal experience. The one senator we thought we had completely lost ended up making the most impassioned speech in favor of the bill on the senate floor. The bill passed without a dissenting vote of legislators present-and-voting in both chambers and was signed into law by Gov. Haslam.[5]

Public Chapter 493 creates a fair and expedient way for next of kin to have the manner of death of a loved one that is initially labeled as suicide reconsidered and perhaps changed. The law, codified at Tenn. Code Ann. 68-3-502(i), requires the Tennessee Department of Health to maintain a notice of the next of kin’s rights on its website. The Department has posted a copy of the law and other useful resources.[6] It lists the steps next of kin may take to seek reconsideration if there is disagreement that a manner of death was suicide.

Step 1: Helping Your Client Get Started

The next of kin must submit an affidavit of written request for reconsideration to the county medical examiner who signed the death certificate, the chief medical examiner of the regional forensic center where the autopsy was performed and the commissioner of health.[7] There is a form for this purpose called “Request for Reconsideration of Suicide as Manner of Death,” and it is posted online.[8] The written reconsideration request must state the nature and reasons for the reconsideration. It must be submitted within one year from the date the death certificate was filed with the State Office of Vital Records.[9] That date is located on the death certificate in block 25, adjacent to the signature of the medical examiner.

Locating these parties is somewhat tricky. In order to find the address of the county medical examiner who signed the decedent’s death certificate, you can use the Department of Health’s licensure verification tool found online.[10] The address of the chief medical examiner of the regional forensic center where the autopsy was performed is posted on the Department of Health’s webpage.[11] The address for the current Tennessee Commissioner of Health, John J. Dreyzehner, MD, is 710 James Robertson Parkway, Nashville, TN 37243.

Remember, the form affidavit must include the reasons why your client disagrees that the decedent’s death was a suicide. The affidavit must be notarized. It is recommended, but not required, that the affidavit be mailed via certified mail, return receipt requested. It is also strongly recommended that you include your or your client’s telephone number and email address, so the medical examiner can get in touch easier to set up a meeting.

Alex Beatty’s gravestone. Beatty died at 24 as the result of drug overdoses. Submitted photo.
Alex Beatty’s gravestone. Beatty died at 24 as the result of drug overdoses. Submitted photo.

Step 2: Reconsideration Meeting with Medical Examiner

The medical examiner who signed the death certificate has 30 days to hold an in-person meeting with the next of kin seeking the reconsideration. At the next of kin’s request, the meeting may be held telephonically instead of in person if, for example, the next of kin lives a long way from the location of the medical examiner. The meeting is the opportunity for the next of kin to present all evidence to the medical examiner as to why the manner of death was not suicide.[12]

Prepare your client to attend the meeting with the medical examiner with any relevant supporting documentation or medical articles or treatises. Reasons may be other than medical reasons. Your client may have emails or other evidence that the deceased had made long-term plans. Such evidence would tend to negate any conclusion that the deceased intended to take his or her own life. Intent is an element of the definition of suicide, although medical examiners in Tennessee do not strictly follow the common law definition of suicide. Your client may have statements from friends indicating that the deceased did not want to die.

If the deceased had a long history of addiction to drugs and/or alcohol, that is extremely useful information to negate intent to kill oneself. If the deceased suffered from substance abuse disorder, they needed more and more substances to sustain their addiction. They may have taken a lot of pills not knowing their strength or drugs that interacted dangerously with other medications without understanding. They may have obtained drugs with unknown ingredients off the street. Many faux pills are laced with a deadly substances like fentanyl, carfentanyl or other ingredients. Taking drugs in those manners does not necessarily mean that a long-time addict meant to kill him- or herself. A presentation authored by the deputy state chief medical examiner, “How to Best Certify Deaths Due to Substance Use,” is located on the department’s website. The presentation is tailored to a forensic medical audience but is useful to lawyers representing a next-of-kin client seeking reconsideration.

After the meeting with the next-of-kin, the medical examiner has 30 days in which to decide to leave suicide as manner of death or to change it to something else such as “accidental” or “undetermined” — conclusions that make more sense in the absence of clear evidence of intent to commit suicide, such as a suicide note or forensic evidence excluding other possibilities.

If the decision is to change the manner of death from suicide, the medical examiner has up to 30 additional days to file the change with the Tennessee Office of Vital Records.[13] The change will consist of “suicide” being crossed out in box 30 and the new manner substituted in box 30. If the decision is to leave suicide as manner of death, the next of kin can accept the decision or proceed to the Step 3.

Step 3: Appeal to the Chief Medical Examiner of the Regional Forensic Center

If the decision is to proceed to Step 3, further reconsideration may be obtained from the chief medical examiner of the applicable regional forensic center.[14] It requires the submission of a written request on a form provided by the Tennessee Department of Health. The Request for Reconsideration of Suicide as Manner of Death form should suffice. Contact information for each regional forensic center chief medical examiner can be found online.[15] The request should include copies of all the information that should be considered by the chief medical examiner to reverse the determination that the manner of death of the deceased was suicide.

The chief medical examiner has 30 days to respond to the next of kin in writing with a decision that includes detailed reasons supporting the decision. The commissioner of health will be copied on this report. If the chief medical examiner’s decision is to change manner of death, the chief medical examiner has up to 30 additional days to file the change with the Tennessee Office of Vital Records.[16] The change will consist of “suicide” being crossed out in box 30 and the new manner substituted in box 30. If the decision is to leave suicide as manner of death, the next of kin can accept the decision or proceed to the Step 4.[17]

Liz and Yarnell Beatty hold the signed bill, sponsored by  Rep. Glen Casada, R-Franklin, center. Public Chapter 493 creates a fair and expedient way for next of kin to have the manner of death of a loved one that is initially labeled as suicide reconsidered and perhaps changed. Submitted photo.

Step 4: Mediation

Step 4 is mediation between the next-of-kin and the chief medical examiner of the regional forensic center. The next-of-kin is responsible for hiring the mediator. The mediator must be certified under Rule 31 of the Tennessee Supreme Court. The Tennessee State Courts website lists Rule 31 mediators with their contact information.[18]

If mediation leads to an agreement that the manner of death was suicide, no further action is necessary. If mediation leads to an agreement that the manner of death was other than suicide, then the chief medical examiner of the regional forensic center shall file an affidavit within 30 days directing the office of vital records to amend the death certificate to reflect the new manner of death.[19] The change will consist of “suicide” being crossed out in box 30 and the new manner substituted in box 30.

Improvement Opportunities

Public Chapter 493, Acts of 2017, is good legislation for families who need it. Many of our health care clients should be made aware of it. Those needing to know would include individuals who serve in medical examiner roles as well as professionals in counseling roles such as psychiatrists, psychologists, grief counselors, social workers and others who treat or counsel patients who may express disagreement that an overdose or other circumstance involving a loved one was suicide. Others such as funeral directors, clergy and law enforcement would also benefit from a knowledge of this law.
While the suicide reconsideration law is a good start in correctly classifying manner of death, the process to reduce the need for the law, of course, is to reduce the number of overdoses. I pray that happens. In the short term, the one-year time limit for requesting reconsideration should probably be removed. Evidence tending to negate a finding of suicide could turn up years later.

To start the process of getting manner of death right the first time, two things need to happen. First, the definition of suicide in Tennessee law needs to be codified and uniformly applied in whatever context it is used. Second, determinations as to manners of death should be uniformly applied. Why are these changes important? Besides the toll it takes on families like mine when suicide is alleged to be incorrectly determined, determinations of manner of death shape public health goals for our state and help direct where state funds go to address public health matters. Fortunately, lawmakers are starting to think about these issues. House Speaker Beth Harwell’s bipartisan opioid task force recommended that Tennessee create a consistent approach to determining drug overdose death.[20] The 2018 General assembly enacted Public Chapter 1005, the Suicide Mortality Review and Prevention Act of 2018, which allows the commissioner of health to establish a team to make recommendations for programs or policies to prevent suicide deaths in Tennessee. This commission would make recommendations for: changes to any state law or policy that would promote the prevention of suicide deaths; improvements to the way suicides are investigated and/or reported; and strategies for prevention of suicide deaths.[21]

Learn More

Attend “Breaking the Silence: Addressing Youth Substance Abuse,” Aug. 12, 2018 in Nashville. Details are at www.eventbrite.com/e/breaking-the-silence-addressing-youth-substance-abuse-tickets-46303075746.

Contact Liz Beatty at aybeatty@comcast.net for more information.

Definition of Suicide

In Tennessee, the legal definition of suicide is derived from common law.

Suicide is the willful and voluntary act of a person who understands the physical nature of the act, and intends by it to accomplish the result of self-termination. Suicide is the deliberate termination of one’s existence, while in the possession and enjoyment of his mental faculties. Self-killing by an insane person is not suicide.[22]

It is clear from this definition that suicide requires intent. In addition, at least in insurance cases, there is a presumption against death being by suicide and in favor of accidental death where a death by “external and violent means” occurs.[23] This presumption can be overcome, “[w]here death by external violence is shown by facts or circumstances, inconsistent with accident, the presumption against suicide is displaced, and no longer continues to operate in favor of the plaintiff.”[24]

Suicide as a legal definition and as a determination of manner of death by medical examiners should incorporate intent as well as a presumption that the decedent did not intend to kill himself or herself. Having that presumption in law would prevent medical examiners from inferring suicide based primarily on the levels of drugs in the decedent’s system. Levels do not translate to intent in all cases when the decedent took above recommended levels, combined drugs which are contraindicated or misused the drug such as crushing, snorting and/or injecting a slow-release drug leading to death. This principle is recognized in Tennessee case law. One court observed, “Taking too much of a drug so as to overdose does not in and of itself infer that the death was a suicide.”[25]

In the weeks preceding his death, Alex’s addiction led him to play veritable Russian roulette by misusing pills and mixing opioids and benzodiazepines, medications that rarely should be taken together. He purchased a dozen Oxy but only took one. He obviously planned that he would need more on future occasions to sleep, during his upcoming travels, his remaining studies or whatever else he thought the future held for him. Liz and I hope that the suicide reconsideration law, enacted in the wake of our son’s tragic death, helps other families. Mostly though, we pray nobody ever has a need for it.

Notes

  1. Tennessee Department of Health news release issued Sept. 18, 2017: “Increasing Number of Tennesseans Dying from Drug Overdoses.” http://www.tn.gov/health/news/53332.
  2. Tenn. Code Ann. §§ 38-7-106(a); 38-7-108; 38-7-109 and 68-3-502(c)(1). Tenn. Comp. R. & Regs. 1200-36-01-.03.
  3. Tenn. Comp. R. & Regs 1200-07-01-.10(3)(b).
  4. Tenn. Comp. R. & Regs. 1200-07-01-.10(3)(b).
  5. Public Chapter 493, Acts of 2017.
  6. http://publications.tnsosfiles.com/acts/110/pub/pc0493.pdf
  7. Tenn. Code Ann. § 68-3-502(i)(2)(B).
  8. http://www.tn.gov/health/article/OSCME-resources.
  9. Tenn. Code Ann. § 68-3-502(i)(2)(B).
  10. https://apps.health.tn.gov/licensure/.
  11. https://www.tn.gov/health/article/OCME-regional.
  12. Tenn. Code Ann. § 68-3-502(i)(3).
  13. Tenn. Code Ann. § 68-3-502(i)(4).
  14. Tenn. Code Ann. § 68-3-502(i)(5)(A).
  15. https://www.tn.gov/health/article/OCME-regional.
  16. Tenn. Code Ann. § 68-3-502(i)(5)(B).
  17. Tenn. Code Ann. § 68-3-502(i)(6)(A).
  18. https://www.tncourts.gov/programs/mediation/find-mediator or call 615-741-2687 or toll free 800-448- 7970.
  19. Tenn. Code Ann. § 68-3-502(i)(6)(B).
  20. Beth Harwell Campaign Update email, Jan. 29, 2018.
  21. SB 1949 by Crowe / HB 1961 by Ramsey.
  22. Ray v. Leader Federal Savings & Loan Association, 40 Tenn.App. 625, 644, 292 S.W.2d 458, 60 A.L.R.2d 564 (Tenn.Ct.App. 1953).
  23. Mutual Benefit Health & Accident Association v. Denton, 22 Tenn. App. 495, 124 S.W.2d 278, 282 (Tenn.Ct. App. 1938).
  24. Provident Life and Accident Insurance Company v. Prieto, 169 Tenn. 124, 83 S.W.2d 251, 267 (Tenn. 1935).
  25. Brown v. Sun Life Insurance Co., 57 S.W. 415 (Ct. Chancery App. 1899).

Yarnell Beatty YARNELL BEATTY is senior vice president and general counsel of the Tennessee Medical Association. He formerly served as staff counsel to the Tennessee Department of Health, as well as positions in that department as executive director of the Tennessee Board of Medical Examiners and director of health-related boards. Beatty serves on the Executive Council of the Tennessee Bar Association Health Law Section. He earned his law degree from Emory University School of Law in Atlanta.