Should There Be an Autopsy? A California Family’s Decision After a Wrongful Death

Deciding whether your loved one should have an autopsy can be heart-wrenching. It comes in the first hours or days after a death, when the family is least prepared to think about evidence.

But the decision can have a profound effect on any later case. If someone else caused the death, the family will have to prove it. The autopsy is often the most important evidence of how and why the person died.

Families often assume the coroner will perform an autopsy in every case that matters. That is not always so. California law gives the coroner discretion, and it gives the family rights of its own.

This article explains when the coroner investigates, when an autopsy is done, how a family can ask for one, and what happens to the case if there is none.

What an Autopsy Is, and Who Decides

An autopsy is a thorough examination of the body by a physician, usually a forensic pathologist, to determine the cause and manner of death. In California, a forensic autopsy may be performed only by a licensed physician. (Gov. Code, § 27522, subd. (a).) It is different from an external examination, which looks only at the outside of the body. (Ibid.)

Every county has a coroner or medical examiner charged with investigating certain deaths. The coroner decides the manner of death: natural, accident, suicide, homicide or undetermined. (Gov. Code, § 27522, subd. (d)(1).) Our page on the coroner’s role explains more.

The Coroner Must Investigate Many Deaths

Under Government Code section 27491, the coroner must inquire into and determine the circumstances, manner and cause of, among others:

• Violent, sudden or unusual deaths.
• Unattended deaths, and deaths where no physician (or hospice nurse) attended the person in the 20 days before death.
• Deaths known or suspected to result from an accident or injury, “either old or recent.”
• Deaths by drowning, fire, hanging, gunshot, stabbing, poisoning or other criminal means.
• Suspected suicides.
• Deaths from occupational diseases or hazards.
• Any death reported to the coroner for inquiry.

Physicians, nurse practitioners, physician assistants and funeral directors must report a death to the coroner when it follows an injury or accident, when suicide or a crime is suspected, or when the cause cannot be stated. (Health & Saf. Code, § 102850.) Our page on deaths the coroner must investigate explains more.

Many counties also ask hospitals to report deaths in the emergency room or within 24 hours of admission, deaths during or after surgery or a procedure, and deaths of patients who arrived in a coma. The most common category, though, is simple: a death in which any injury was a cause or a contributing cause, no matter how long ago it happened.

An Investigation Does Not Always Mean an Autopsy

This surprises many families. In most cases, the coroner is not required to perform an autopsy. The main exception is the sudden, unexpected death of an infant, and even then the autopsy becomes discretionary if the attending physician wishes to certify sudden infant death syndrome. (Gov. Code, § 27491.41, subd. (c).) Otherwise, the law says the coroner “may, in his or her discretion,” do one. (Gov. Code, § 27491.4.) At least one large county says plainly that it is not required by law to autopsy every non-natural death. (San Diego County Medical Examiner.)

In some cases the coroner decides the cause from medical records or an external examination. In a natural death, the coroner may let the attending physician sign the death certificate. (Gov. Code, § 27491, subd. (c).)

In deaths caused by violence or injury, the coroner often performs an autopsy. But “often” is not “always.” Ask the coroner’s office, right away, whether an autopsy will be performed, and if not, why not.

Tell the Coroner What You Know

You may call the coroner’s office and ask whether an autopsy is planned. If you suspect foul play, a dangerous product, or someone else’s careless conduct, tell the coroner. The coroner may take that information into account in deciding whether an autopsy is needed.

A lawyer can put those concerns in writing to the coroner, so there is a record of what the family reported and when.

The Family’s Right to Demand an Autopsy

If the coroner has not performed an autopsy, the family can require one. Under Government Code section 27520, the coroner “shall” perform an autopsy if the surviving spouse requests it in writing. If there is no spouse, a surviving child or parent may make the request, and if there is none, the next of kin. A registered domestic partner has the same right as a spouse. (Fam. Code, § 297.5.)

The family pays for an autopsy it requests. (Gov. Code, § 27520, subd. (c).) Counties that publish their fees charge several thousand dollars, roughly $3,700 to $5,200, usually paid in advance. Ask the county what it charges.

A second autopsy, after the coroner has already performed one, is at the coroner’s discretion. (Id., subd. (b).)

A Private Autopsy

Sometimes the family wants its own forensic pathologist. That may be because the coroner has decided not to perform an autopsy, or because the family does not want the government’s pathologist to be the only medical evidence the jury hears.

A private autopsy requires written authorization, which the law allows from the spouse, a child or parent, a brother or sister, or another person with the right to control the disposition of the body. (Health & Saf. Code, § 7113.) Independent pathologists perform these examinations, sometimes at a county facility and sometimes at a funeral home, after the coroner releases the body. When relatives disagree, the order of priority for deciding what happens to the body may matter, so let the pathologist or funeral home confirm whose authorization is sufficient. (Health & Saf. Code, § 7100.) Apart from limited exceptions for education and research, only people directly involved in the coroner’s investigation may attend the coroner’s own autopsy, so a family’s pathologist usually examines the body afterward. (Gov. Code, §§ 27491.4, subd. (a), 27522, subd. (f).)

A family’s pathologist can also review the coroner’s findings, slides and photographs. A forensic review of this kind is “common where bereaved family members have unanswered questions about an official autopsy report.” (Edais v. Superior Court (2023) 87 Cal.App.5th 530.)

Deaths in custody or involving law enforcement. Officers directly involved in a death may not take part in the autopsy. (Gov. Code, § 27522, subd. (f)(2).) Beginning January 1, 2027, in counties where the sheriff is also the coroner, an independent coroner, medical examiner or pathologist must determine the cause and manner of an in-custody death, and the findings must be delivered to the next of kin. (Gov. Code, § 27491.56.)

Decide Before Cremation

The right to decide on burial or cremation follows an order set by law, beginning with the spouse. (Health & Saf. Code, § 7100.) If an independent autopsy may be needed, that decision must be made before the body is cremated. Cremation ordinarily ends the possibility of a later autopsy and destroys most of the evidence a pathologist could examine. Burial preserves the possibility of a later examination, but exhumation is costly, and the evidence degrades.

Religious Objections

The coroner must not perform an autopsy if the person who died signed a certificate of religious belief objecting to it, in front of two witnesses. (Gov. Code, § 27491.43.) If a relative or friend says such a certificate exists, the coroner must wait 48 hours. Even then, the coroner may proceed if there is reasonable suspicion of a crime or a contagious disease, or with a court order. The statute protects the person’s own signed objection; a family’s objection alone does not bind the coroner.

The coroner may keep tissue needed for the investigation. (Gov. Code, §§ 27491.4, subd. (a), 27491.45.) Families may ask what, if anything, was retained.

What It Costs the Family

There is generally no charge to the family when the coroner decides to perform an autopsy. The coroner may, if the county has adopted an ordinance, charge the person responsible for the funeral for the cost of removing and keeping the body, up to $100 under Government Code section 27472. That charge may not be made to an indigent person, for a child 14 or younger, or when the coroner attributes the death to someone else’s criminal act. Some counties publish other fees for transport and storage, so ask.

Getting the Report and the Photographs

Coroner and autopsy reports are generally public records, although a report that is part of a homicide investigation may be withheld while a criminal prosecution is concrete and definite, and other exemptions can apply. (Edais, supra, 87 Cal.App.5th 530; Gov. Code, § 7923.600.) Many counties give the next of kin a copy free or for a small fee.

Autopsy photographs are protected. Since January 1, 2025, however, the coroner may release them for use in a civil case about the death on the written authorization of a legal heir, representative, or the person’s parent, sibling or child, or on a subpoena from an heir in a pending case. (Code Civ. Proc., § 129.)

If the death certificate says the cause is “pending,” that is common while tests are completed. If the family disagrees with a finding, the coroner can amend the certificate on new information. (Health & Saf. Code, § 103300.) Bring what you know to the coroner; a lawyer can help. Courts have refused to order a coroner to change the cause of death stated on a certificate. (Morris v. Noguchi (1983) 141 Cal.App.3d 520.) But the certificate does not decide the civil case. A properly registered death certificate is prima facie evidence of the facts stated in it (Health & Saf. Code, § 103550), but it is “subject to rebuttal and to explanation,” and the family may offer other evidence that contradicts the coroner’s opinion on the cause of death. (Morris, supra, 141 Cal.App.3d at p. 523, fn. 1.)

The Family Must Prove the Cause of Death

If someone caused or contributed to your loved one’s death, the heirs must prove it in court. That means two burdens.

First, the burden of producing evidence: the family must offer evidence that the cause of death was the defendant’s wrongful conduct. (Evid. Code, §§ 500, 550.) The medical cause of death is usually proved through the testimony of a qualified physician or pathologist. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 403.)

Second, the burden of persuasion: the jury must be convinced that it is more likely true than not that the defendant’s conduct was a substantial factor in causing the death. (Evid. Code, § 115; CACI Nos. 200, 430.) “A mere possibility of such causation is not enough.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775–776.)

That is why the autopsy matters so much. When there is none, the defense may argue that something else caused the death: a heart condition, a medication, an unrelated illness. Arguments over causation can decide whether the family wins or loses.

If There Was No Autopsy

If no autopsy was performed and your loved one has already been laid to rest, you may still have a case. Causation can often be proved through medical records, the coroner’s external examination, toxicology, the scene, and the testimony of witnesses and experts. The legal question is not whether there was an autopsy, but whether the evidence shows, without speculation, that the defendant’s conduct more likely than not caused the death. The evidence must be evaluated to decide whether it is enough.

Do not give up on a case without first having a lawyer review it.

A Note on Medical Negligence

When a death follows medical care, an autopsy may be the only way to learn what happened. Our firm does not handle medical negligence cases. Families with those concerns should consult a lawyer who does.

The Decision Is Yours, but It Must Be Made Quickly

An autopsy cannot be undone, and in many cases it cannot be done later. In the first days after a death:

• Ask the coroner whether an autopsy will be performed.
• Tell the coroner, in writing, if you suspect someone else caused the death.
• If the coroner declines, consider a written demand under section 27520, or a private autopsy.
• Do not authorize cremation until that decision is made.
• Get legal advice early. Our coroner assistance page explains how we can help.

The evidence of how your loved one died may be the most important evidence the family will ever have.

Authorities

• Gov. Code, §§ 7923.600, 27472, 27491, 27491.4, 27491.41, 27491.43, 27491.45, 27491.56, 27520, 27522.
• Health & Saf. Code, §§ 7100, 7113, 102850, 103300, 103550.
• Code Civ. Proc., § 129.
• Evid. Code, §§ 115, 500, 550.
• Fam. Code, § 297.5.
• CACI Nos. 200, 430.
• Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763.
• Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396.
• Morris v. Noguchi (1983) 141 Cal.App.3d 520.
• Edais v. Superior Court (2023) 87 Cal.App.5th 530.