Honorable C. W. Karisch            Opinion No. M- 379
County Attorney
Wailer County                      Re: May Wailer County Hospital
Hempstead, Texas                       legally pay a charge for
                                       an autopsy performed in
                                       the hospital upon the body
                                       of an expired patient?
Dear Mr. Karisch:

     Ry recent letter you have requested an opinion concerning
the above stated matter. We quote, in part, from your letter
as follows:

          "The Waller County Hospital was organized, and
     operates, under Articles 4478-4494, R.C.S. A patient
     of the Hospital who was being cared for by(a doctor)
     who is a member of the staff of visiting physicians
     of said Hospital, died. There was no question of
     foul play and no occasion for an inquest. (The doctor)
     determined that an autopsy was needed and one was per-
     formed at the request of (the doctor)and the Superin-
     tendent of the Hospital.  The physician performing the
     autopsy has billed the Hospital for his services and
     such bill has been approved by the Superintendent of
     the Hospital, and photocopies of such bill and approval
     by the Superintendent are attached hereto. The
     patient was in the Hospital under the Medicare Program,
     and before authorizing or ordering an autopsy, officials
     of the Hospital ascertained from some supposed official
     with the Medicare Program that autopsies in cases such
     as this was a proper Medicare expense.   However, the
     autopsy expense has not been charged to the patient's
     account and has not been charged to any other account.

         "I assume that the bill is reasonable, at least
     no question in that regard has been raised. No reason
     for the autopsy has been advanced other than to determine



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    Hon. C. W. Karisch, page 2   (M-379)



         the cause of death. As I view the matter,  it becomes a
         question of whether or not the expense of this
         autopsy was a reasonable and incidental expense to
         operating the Hospital which the Hospital had the im-
         plied authority to authorize, or whether the expense
         should have been the expense of the patient's
         estate."   (Parenthesis ours.)

         At the outset we are met with the consideration of the
    effect of the hospital superintendent's request and obvious
    approval for the autopsy in question upon the hospital's
    responsibility to pay for the costs of the autopsy.

         Article 4485, Vernon's Civil Statutes, details the authority
    and duties of the hospital superintendent.  We quote, in part,
    from this Article.

             "The Superintendent shall be the chief executive
         officer of the hospital .. . subject to . .. the powers
         of the board of managers.

              "He shall ... equip the hospital with ... all ...
         needed facilities for the care and treatment of
         patients, ...

             II. ..

              "He shall cause a careful examination to be made
         of the physical condition of all persons admitted to
         the hospital and provide for the treatment of each
         patient according to his need; ..." (Emphasis added.)

         In addition to the above quoted language, Articles 4486
    and 4487, Vernon's Civil Statutes, provide in detail the
    authority of the superintendent on the procedure for admission,
    and support of individuals admitted as patients.  Both of
    those Articles and the above quoted Article (4485) limit the
    superintendent's authority to provide for "the care and
    treatment" of the patients, subject to the rules and regulation
    of the board of managers.  None of the statutes involved
    specifically authorize a superintendent to request or approve
    an autopsy.


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         Hon. C. W. Karisch. page 3 (M-379)



              So the question then is whether the "care and treatment"
         of patients also encompasses autopsies of deceased patients.
         In our opinion "care and treatment" does not include an
         autopsy of a deceased patient. Great American Indemnity Co.
         v. Dabnev, 128 S.W.Zd 496 (Tex. Civ. App. 1939, error dism.,
         judgm. car.). Consequently, the superintendent has no
         authority to request or approve an autopsy, and in the present
         case, the request and approval would have no effect upon the
         question of whether the hospital may legally pay the expense
         in question.

              In Attorney General's Opinion V-12Q'5 (1951). this office
         ruled that charges against the county hospital are subject to
         the aontrol of the Commissioners Court. We quote from that
         opinion as follows:

                   "It will be noted from the foregoing stat-
               utes that authority is vested in the board of man-
               agers and the superintendent of a county hospital to
               incur necessary expenditures for the operation and
               maintenance of the hospital in a sum 'not exceeding
               the amount provided for such purposes in the com-
               missioners court'. By the express terms   of Article
               4484, the board of managers must transmit all bills
               and accounts, including salaries and wages, to the
               commissioners court for payment 'in the same manner
               as other charges against the county are paid'. Arti-
               cle 2351, V.C.S., provides that the commissioners
               court shall 'audit and settle all accounts against
               the county and direct their payment'.   In view of
               these provisions, the county treasurer may not issue
               warrants in payment of bille and accounts of the
               hospital until the commissioners court has approved
               them for payment in the same manner as other charges
               against the county are paid. Although the manage-
               ment of the county hospital is vested in the board
               of managers, the Commissioners court must approve
               all accounts.  See Att'y. Gen. Op. O-6433 (1945)."




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    Hon. C. W. Karisch, page 4   (M-379)



         Your second question is whether the Commissioners   Court
    is authorized to pay this autopsy expense.

         Article 4478a. Vernon's Civil Statutes, provides the
    enabling legislation for the creation of a county hospital.
    This Article is quoted, in part, as followsc

             "The Commissioners Court of any county shall
         have power to establish a county hospital . .. for the
         care and treatment of persons suffering from any
         illness, disease or injury . .." (Emphasis added.)

         In the above quoted provision, we find the same limitation
    of authority of the Commissioners Court, relative to patient
    care and treatment, a6 is found relative to the authority of
    the hospital superintendent, i.e., "care and treatment".
    Therefore, it is our opinion that the county cannot pay for an
    autopsy of a hospital patient dying of natural causes, under
    the facts set out in your opinion request. Great American
    Indemnity Co. v. Dabney, supra.

         This opinion is limited to the facts submitted, and where
    a person dies from uncertain causes, the Legislature has made
    provision in Articles 49.01, et seq., Vernon's Code of Criminal
    Procedure, for autopsies to be performed at county expense.

                                 SUMMARY
                                  .
                 A Commissioners Court operating a County
             hospital, pursuant to the provisions of Articles
             4478, et seq., V.C.S.. may not legally pay a
             charge for an autopsy unless ordered by the proper
             authorities pursuant to the provisions of Article
             49.01, et seq., V.C.C.P.




                                                C. MARTIN
                                             ey General of Texas
    Prepared by James C. McCoy
    Assistant Attorney General of Texas

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Hon. c. W. Karisch, page 5    (M-379)



APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
George Kelton, Co-Chairman

Larry Craddock
Jerry Roberts
Bill Craig
Bob Crouch

W. V. GEPPERT
Staff Legal Assistant

HAWTHORNE PHILLIPS
Executive Assistant




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