After a third chief medical examiner in little more than a year has left the post, Attorney General Tim Fox will ask the Legislature to revise the management structure of the state crime lab.
Crime Lab Administrator Phil Kinsey described the proposals as clarifications that result in a clearer command structure that should prevent the kinds of problems that led two consecutive medical examiners to resign last year amid questions about the work quality of an associate examiner.
A third examiner has taken a demotion just a year after accepting the state’s top post.
Another piece of the proposed agency bill would clarify statutes requiring autopsies whenever someone dies in the custody of or during pursuit by law enforcement.
“When we first started the transition, having bumps at the medical examiner’s office, my bosses wanted to know who was in charge of the medical examiner,” Kinsey said. “I was new on the job. I had been in the lab a long time but had never seen a hierarchical structure regarding the medical examiners.”
The Department of Justice’s Forensic Sciences Division, colloquially known as the state crime lab, provides an array of services to law enforcement officials and coroners statewide.
The state medical examiner, who conducts autopsies, and the crime lab administrator, who oversaw other functions such as drug testing, both are appointed and hired by the attorney general. It was not always clear how the two interconnected positions should function nor who had authority to hire and fire associate examiners.
Dr. Gary Dale had served as state medical examiner for decades and was joined by Dr. Walter Kemp as deputy state medical examiner about a decade ago. The two performed autopsies out of the state crime lab office in Missoula, primarily working for coroners in western Montana.
Death investigators in eastern Montana typically turned to private pathologists. Since 1998, that work had almost exclusively been done by Dr. Thomas Bennett of Billings, who was recognized by the state as an associate medical examiner. Dale directed him not to perform child autopsies because his work on some infant death cases in Iowa had been questioned or discredited by several authorities.
Bennett performed child autopsies anyway, according to previous reporting by Lee Newspapers based on an extensive review of state records. Confronted numerous times by Dale over several years, Bennett did not stop pediatric examinations. He argued he worked directly for the coroners and Dale had no authority over him.
Records show the issue came to a head in late 2014 and appears to have been a factor in Dale’s resignation in April 2015. Kemp was promoted to the role of state medical examiner but announced his own resignation a couple of weeks after taking the helm, citing the ongoing “unworkable situation.”
More than a month after Kemp’s announcement and just a few days before his departure July 1, Fox’s staff informed Bennett that his appointment as an associate examiner would end and that the medical examiner's office would be restructured so all coroner-ordered autopsies would be performed by state employees. Despite that statement, the office has continued to contract out autopsies.
Fox said the dispute triggered a broader review of the state's system.
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"We think the system was antiquated," he said of relying on contractors rather than state employees. "Back in the day it may have been more difficult given Montana’s rural population and low population to attract lots of doctors that wanted to do medical examinations.”
The changes to state law proposed by Fox are included in a bill to be carried by Rep. Kim Dudik, D-Missoula. The measure would make additional tweaks to clarify the definitions of a state, deputy and associate examiner. They would also give the state examiner explicit authority to hire and fire without having to seek intervention from the attorney general. The state medical examiner also would report to Kinsey.
“We really need that cleared up,” Kinsey said. “There was no real clear line of who worked for who.”
The proposal also would have the crime lab administrator take on some day-to-day duties of examiners such as communicating with coroners and managing the budget. That will leave the examiner to focus on medical functions of the post.
After Dale's departure in April 2015 and Kemp's in July 2015, the state struggled to fill three posts: one state medical examiner and a deputy to work from Missoula, and a third examiner to open a new Billings office.
In late August 2015, Dr. Jaime Oeberst started as the new state medical examiner after leading the largest county office in Kansas. Dr. Robert Kurtzman, who performed autopsies for several Colorado counties and had done contract work for Montana, started as a deputy medical examiner in December. Dr. Nikki Mourtzinos joined the Missoula office a month later after working at Children’s National Health System in Washington, D.C.
About a year after Oeberst’s arrival, she stepped down as chief examiner to become a deputy “for personal reasons,” Kinsey said. She is currently on leave, Fox said. Her workload involved coordinating with coroners and their deputies from 56 counties to perform autopsies as well as the administrative paperwork of the expanding office and an ongoing effort to secure national accreditation.
Kinsey said Oeberst had previously discussed those challenges with him, but declined to say whether they were why she stepped down.
Coroners interviewed for this story reported no complaints with Oeberst or the new crime lab structure. Montana Coroners Association President Greg Kirkwood said Kinsey notified them at an October board meeting about Oeberst’s changed title and that Kurtzman would be taking over as the chief examiner.
Citing work schedules or personal time off, both Oeberst and Kurtzman declined interview requests.
Fox’s proposed changes also include changes to statute about when to require some autopsies and who will pay for them. Specifically, the statute will mandate an autopsy anytime someone dies in the custody of law enforcement or during an interaction with an officer, such as a traffic stop or chase. If the coroner should decide against an autopsy, the state would do one anyway and pick up the bill.
“That’s just to make sure all the information in those investigations is available,” Kinsey said. “Given the current national conversations about deaths in police custody and shootings, we wanted to make sure everything is investigated that should be.”