Coroner records not exempt from public disclosure

KANSAS–A district coroner’s investigative records are open to the public once the official coroner’s report is issued, a state court of appeals in Topeka ruled in mid-April. It held that autopsy records are not medical records exempt under the state’s Open Records Act.

The appeals panel affirmed the December 1995 finding of the Shawnee District Court in Topeka that records of the coroner’s investigation were not exempt. It reversed the lower court’s protective order that allowed the records in an investigation to be seen only by the dead woman’s husband, despite its determination that they were public under the Kansas records statute.

The appeals panel reversed the lower court’s decision that medical history records gathered from personal physicians by the coroner were also open under the Kansas Open Records Act. The panel agreed with the coroner that these records were privileged as confidential physician-patient records, but further determined that the spouse, as “the personal representative of a deceased patient,” could waive the privilege.

In February 1995 Launcelot Burroughs died of an embolism that occurred while she was on the operating table. A malfunctioning machine had pumped air into her bloodstream during an operation that she and her husband had believed would be routine surgery. Because the death was so unexpected, Leo Burroughs contacted an attorney in order to sue her physician and the hospital where she died.

To bring a malpractice suit in Kansas an attorney must have in hand an expert opinion that malpractice occurred. To get information about the death that an expert could evaluate, Burroughs’ attorney sought, and ultimately sued for, records from Dr. George Thomas, the Shawnee County district coroner.

In preparing his coroner’s report, which was public, Thomas had gathered investigative records, including medical history records, from Launcelot Burroughs’ physicians. He claimed that all of these records were confidential.

The district court found that coroner’s records are public records and the coroner appealed. In the course of the litigation, the coroner and Burroughs reached a settlement agreement that ultimately allowed Burroughs to win his malpractice lawsuit against his wife’s physician and the hospital where she died. But Thomas nonetheless appealed, asking the appeals court to uphold the withholding of materials used in an autopsy report. (Burroughs v. Thomas; Attorney for Burroughs: Richard Evans, Topeka)