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By Jeffrey J. Downey, elder law attorney serving Maryland, Virginia, and Washington DC
Upon death everyone is issued a death certificate. But how accurate is a death certificate?
A death certificate may be critical in a lawsuit for many reasons, not the least of which is potential liability, as well as the nature of the death, contributing factors to the death, the timeframe of the death, and illnesses that may have impacted the death but not directly caused it.
In addition to being a vital statistic a death certificate is a legal document, the primary purpose of which is to show that a person has died. Other major purposes are to: (a) provide information for mortality statistics that may be used to assess the Nation’s (and the State’s) health; (b) register causes of morbidity and mortality; and (c) develop funding and programs for public health and safety issues.
To serve these purposes, individual states have a death certificate form based on the US Standard Certificate of Death, and while the documents can vary slightly, they are largely similar as they are required to report certain elements such as date, time, location and cause of death, as well as manner of death. According to Dr. Randy Hanzlick at the National Association of Medical Examiners (NAME), one of the authors of A Guide for Manner of Death Classification, the manner of death designation is an “American invention” that was added to the US Standard Certificate of Death by public health officials in 1910, primarily to assist in clarifying the circumstances of death and to help those who “code and classify cause-of-death information from death certificates for statistical purposes.” In most states, the options are: Natural; Accident; Suicide; Homicide; and Undetermined/Cannot be Determined.
Death certificates are only truly useful for any of their purposes if they are accurate. There are studies on the inaccuracy of death certificates going back decades, as well as very recently.
In a study published in September 2020, in 12 months, 590 death certificates were issued by the hospital. Eighty-eight of 590 (15%) were amended. Of those 88 amended, 41 (47%) were missing an underlying cause of death, 7 (8%) had an inaccurate cause of death, 41 (47%) failed to include relevant contributory causes of death, and 17 (19%) had major typographic errors. Of 88, 24 (27%) fell under the Office of the Medical Examiner’s jurisdiction and were reported with a subsequent change in the manner of death in 23 of 88 cases (26%).”[1]
In many cases, the person who certifies death is usually the treating physician or the hospice or palliative care physician. Some certificates are signed by a patient’s primary care physician, a medical examiner, a coroner, or a forensic pathologist, depending on state law.
Death certificates in nursing homes are often filled out by doctors associated with those nursing homes. As such, they may be motivated to try and protect the nursing home by putting down causes of death that do not incriminate the facility. I was involved in a case in which the children of family member filed a lawsuit against the nursing home alleging that the doctors conspired to report a false cause of death. The patient has fallen off the bed and suffered a head injury. The patient went into respiratory distress within minutes and died there on the floor. The doctor stated the patient died of natural causes. This was one case in which it made sense to sue the doctor who wrote death certificate because it was clearly an inaccurate cause of death. However, many times if the patient does not pass away in the hospital, where proper testing can be done, there may be no evidence to challenge a doctor’s improper cause of death analysis.
In most states if a person dies by other than natural causes, a medical examiner should become involved the case. Under Maryland law, an accidental injury like a fall, is a basis for requesting the participation of a medical examiner.
Under Maryland law a medical examiner must be notified where a death occurs from unknown circumstances, from an accident including a fall with fracture, where the deceased was not under the treatment of a healthcare providers or from any other “external manner of death.” (Md. Code, Title 4, General Health, Section 4-212)
In Virginia, a death certificate is typically completed by the physician who was last caring for the patient for the illness or condition that causes his death, unless the death was accepted by the medical examiner. Any death involving injury or trauma, like a fall, or suspicious circumstances, should be reported the medical examiner. Va. Code 32.1-283. In Virginia, the failure to follow regulations regarding death certifications is a class one Misdemeanor. Va. Code 32.1-27.
In the District of Columbia, a funeral director must report the death within 5 days of death to the DC Registrar. (DC Code §7,231.12 (a)). Within 48 hours, the physician in charge of the patient’s care shall return the medical portion of the death certificate to the funeral director, except when an inquiry is required by the Chief Medical Examiner’s office in DC. Any manner of death that is not believed to be due to natural causes shall be reported to the Chief Medical Examiner’s office, who may then take charge and conduct an investigation.
As such, even those health care practitioners with medical training may not know much about the patient whose death they are certifying. If a patient has been placed in a palliative care setting, the physician may not know the patients detailed prior medical history.
When a family member dies in a nursing home under suspicious circumstances implicating neglect, the family needs to be proactive in pursuing an independent cause of death analysis. Do not be afraid to inquire as to who is doing the death certificate and whether that person is affiliated with the nursing home. You may want to contact that person directly to find out what information he or she is considering in evaluating the cause of death. And if you have concerns about the death certificate findings contact the office of the medical examiner in your state. That can sometimes be done through the funeral director, who can also request an autopsy under certain circumstances, typically with the approval of the family.
You can link to my website here as I discuss more in depth the issues of pursuing the case such as this were it to occur in the state of Virginia.
If you are suspicious of a loved one’s death from the information provided to you by officials at nursing home or assisted living facility, Contact the Law Office of Jeffrey J. Downey, P.C. for a free consultation.
The Law Office of Jeffrey J. Downey
8270 Greensboro Drive, Suite 810
McLean, VA 22102
Email: jdowney@jeffdowney.com
Phone: 703-564-7318 or 703-564-7357 Fax: 703-883-0108
Website: https://www.jeffdowney.com/
[1] Krywanczyk A, Amoresano E, Tatsumi K, Mount S. Autopsy Service Death Certificate Review. Arch Pathol Lab Med. 2020 Sep 1;144(9):1092-1096. doi: 10.5858/arpa.2019-0452-OA. PMID: 31986077.