RESTRICT RELEASE OF AUTOPSY PHOTOGRAPHS

On December 12, 1996, a young woman from Genesee County died in a drunk driving accident. Devastated by the loss of her daughter, the young woman's mother visited a number of area high schools to warn students about the dangers of drinking and driving. When she held up a copy of her daughter's autopsy report during one school visit, a student announced that he had seen photographs of her daughter that had been taken during her autopsy. The woman learned that the autopsy photos were being displayed as part of a "morgue tour" that some county judges required of first-time offenders found guilty of underage possession, drunk driving, and other alcohol-related violations. Defenders of the practice believe that it deters offenders from returning to court, or worse yet, winding up in the morgue themselves. The deceased woman's family was (and still is) outraged by the use of their daughter's body by the courts as a public resource without their consent or knowledge. They were even more upset when they learned that they had no legal recourse against the medical examiner for releasing the photos.

In a separate matter, after Dale Earnhardt, one of the all-time greats in auto racing history, died following an accident in February 2001, the Orlando Sentinel tried to obtain autopsy photos. The newspaper denied any interest in publishing the photos, stating that it merely wanted to have a head trauma expert examine the photos to evaluate various theories on exactly how Earnhardt died, arguing (in part) that knowing more about the cause of the death could help prevent future deaths. Earnhardt's widow was furious and sued to block the release of the photos. Within months, the Florida legislature had enacted the Earnhardt Family Protection Act, which exempts from public records laws any photographs and audio and video recordings of an autopsy, and prohibits those members of the immediate family who are entitled to copies from providing them to others without a court order. Opponents of the act have suggested that it violates the freedom of the press. While the Earnhardt case is subject to Florida--and not Michigan--law, Earnhardt's fame in the auto racing world has attracted national attention, and raises general questions about the public's right to access autopsy records. The widespread availability of celebrity autopsy photographs on the internet indicates that the use of such photos is not just an issue in Florida (or Michigan) and is not just limited to cases where there is some clear social benefit to be derived from their public display.

Many people believe that there should be some strict limits on the display of autopsy photographs that identify the deceased person. Legislation has been introduced to restrict the conditions under which such photos may be publicly displayed.

THE CONTENT OF THE BILL:

The bill would add a new section to Part 28 of the Public Health Code (MCL 333.2855a), concerning vital records, to specify conditions under which "autopsy photographs" may be displayed publicly and to add a new cause of action, allowing specific injured persons, including family members, guardians, and personal representatives, to bring a civil suit against someone who publicly displays such photographs. The bill would define "autopsy photograph" as an image of a deceased human being obtained during the person's autopsy in the state, including an image on videotape, motion picture or other film, or an image captured by digital means.

Prohibited Activity. The bill would specify that a person could not publicly display an autopsy photograph of a deceased person that identified the person by name, face, or other identifying physical feature unless one of the following conditions was met:

· one of the following persons specifically provided written authorization for the public display of the autopsy photograph: the deceased's parent, surviving spouse, guardian, personal representative, or next of kin; or, if none of these persons could be identified or located following a good faith attempt to locate or identify them, an individual charged by law with the responsibility for burying or cremating the body; or

·the public display was one of the following: 1) authorized in writing authorization by the prosecuting attorney having jurisdiction for a purpose directly related to the investigation or prosecution of a criminal case; 2) authorized by a court of competent jurisdiction for a purpose directly related to the proceedings in a civil case; 3) required for a health department to carry out its lawful duties; or 4) necessary for the legitimate research or teaching of only medical or public health, or public safety personnel or students enrolled at a postsecondary educational institution.

Remedy. The bill would also specify that a deceased person's parent, surviving spouse, guardian, personal representative, or next of kin who was injured as a result of a violation of these provisions could bring an action to recover $1,000 or actual damages, whichever was greater, plus costs and reasonable attorney fees.

FISCAL IMPLICATIONS:

There is no fiscal information at present.

ARGUMENTS:

For:

The public display of autopsy photographs that identify the deceased person should be permitted only under very restricted conditions. For someone trying to cope with the death of a family member or close friend, it can be very upsetting to discover that the deceased's image is being shown to others without the family's consent and without a compelling reason. While some people appeal to greater social goods--such as deterring people from driving drunk or determining how a death occurred to prevent future deaths--to support their judgment that the public has a right to access such photos, this right must be balanced with individuals' rights to privacy and confidentiality. Autopsy photos that obscure a person's identity could still be shown and would arguably be just as effective for achieving the benefits that the public display of autopsy photos are alleged to have. (Many people doubt that the use of autopsy photographs for "shock value" or to "scare people straight" has any significant long-term effects.) And the bill would still allow the use of an autopsy photograph that identifies a deceased person if there was a compelling reason to do so. For instance, if a prosecuting attorney needed to publicly display a photo that identified the deceased for the investigation or prosecution of a criminal case or if public health personnel needed to show a picture for teaching or research purposes, the bill would allow them to do so, whether or not family members consented. Publicly displaying an autopsy photo that identifies the deceased person without relatives' consent and without any strong public interest in the display is offensive, disrespectful, and abusive. The new cause of action proposed by the bill would help injured family members, guardians, and personal representatives get some relief when autopsy photographs of their loved ones are used improperly or carelessly.

Response:

It is unclear whether the bill would address either the case of the mother who learned that her daughter's autopsy photos had been shown in a morgue tour or the Earnhardt case (or a case like it). In the former case, the student who had seen the photos recognized them as photos of her daughter by the time and place of the accident--not by name or any visual characteristics of the deceased. And if a newspaper or other media organization had no intention of publishing a celebrity's autopsy photos, it is unclear whether providing the pictures to the organization would count as "publicly displaying" the photos. It is also not clear how the bill would address the subsequent use of photos within the news organization: would an individual who received such photos on behalf of a newspaper run afoul of the bill's prohibition when showing them to colleagues for work-related purposes, even if the individual believed that the photos were obtained with the consent of a family member? A related question is whether showing an autopsy photograph during a court-ordered morgue tour would count as a "public display" of the photograph. Would a judge who orders such tours interpret this prohibition as a limitation on her ability to sentence? If not, would a medical examiner follow the judge's orders or follow the statute in deciding whether or not he was allowed to show autopsy photos?

In a separate matter, some people believe the provision of the bill allowing people to bring civil suits for violations of the act is overly broad. It is unclear whether a guardian or personal representative of a deceased person can be injured by the public display of an autopsy photograph in the same way that family members are injured. Also, it seems unnecessary to allow multiple lawsuits in multiple courts for injured family members. Perhaps only one family member should be allowed to bring suit against someone who violated the bill's provisions and other members should be allowed to join the suit.

Reply:

While the bill may not address every real and imaginable case involving the improper display of autopsy photos, it will address many cases and it will also attract attention to the problem: out of respect for both the deceased and her or his loved ones, autopsy photographs that identify an individual should not be treated carelessly.

Individual accident victims are each allowed to bring suit for injuries they sustain in a single accident. While an injury involved when an autopsy release is not necessarily the same sort of injury as that received in a car accident, perhaps it is best left to the courts to decide when it is appropriate for family members to join an existing suit.

POSITIONS:

The Michigan State Police supports the bill. (5-6-03)

Analyst: J. Caver

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This analysis was prepared by nonpartisan House staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.