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SC coroners face unclear laws on whether they have to identify coronavirus victims

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Attorney General Alan Wilson (copy) (copy)

S.C. Attorney General Alan Wilson. Wilson's office issued a legal opinion on Monday, April 20, 2020, on whether South Carolina coroners are required to release the identities of coronavirus victims. File

Unclear laws have left an essential question unanswered amid the ongoing coronavirus pandemic: Do South Carolina's coroners need to let the public know who has died of the illness? 

On Monday, the S.C. Attorney General's Office issued an opinion that ultimately did not resolve the issue, concluding that "only a court can resolve this question with finality, especially given the unprecedented nature of the current emergency."

Three key coroner's offices from around the state told The Post and Courier they understood the desire for information, but that they had concerns about protecting privacy. The paper asked about their responses to requests for information including victims' names, ages, race and cities or towns of residence.    

York County Coroner Sabrina Gast, who also serves as president of the S.C. Coroner's Association, sent a question to the Attorney General's Office prompting Monday's opinion. 

"Several coroners had been contacted by media outlets asking for detailed information on the decedents," Gast said. "Many of us had concerns with releasing such detailed information considering the state of emergency we are facing and did not want any negative consequences for the families left behind. As far as the opinion is concerned, I will not be releasing specific information on COVID related deaths from my office."

The Attorney General's Office cited a pair of possible legal conclusions in Monday's opinion. 

"A court may well conclude that established South Carolina case law controls and hold that death certificates listing COVID-19 as a cause of death are subject to disclosure based upon that precedent," according to the opinion. "However, a court also could reasonably conclude that under the circumstances of the current declared public health emergency, (the law) limits disclosure of protected health information describing the cause of death."

For Jay Bender, an attorney for the S.C. Press Association and The Post and Courier, the answer is clear: Coroners should release basic information, including a coronavirus victim's name, age, race, city or town of residence, and whether that person was a resident of a nursing home or other extended care facility. 

"I think the public is better served if you know who died," Bender said. 

The state's reading of the law is overly broad when it comes to "protected health information," he said.

"What that deals with is treatment provided to that individual, not to the fact that the individual has died of a particular disease," Bender said. "This section is designed to protect treatment information, not the fact of death."

For now, it appears the question may not be answered until after the pandemic is brought under control. 

Robert Kittle, a spokesman for the Attorney General's Office, said the opinion states how a court could rule based on existing legal precedent, but that in this case there are competing precedents that come to opposite conclusions.  

"Our office has always favored a policy of open government, but we believe that this legal issue presents an open question until a court or the General Assembly further clarifies the law," Kittle said.

Charleston County Coroner Rae Wooten said she has concerns over releasing coronavirus victims' identities. 

"It’s important that we properly identify individuals who have died as a result of this virus, but right now it’s just a super sensitive time to actually release their names," Wooten said. "It’s a fine line. We’ve never worked in this pandemic situation before."

The coroner said she believes it's important for the public to know information like case and fatality numbers, both overall and down to a county and ZIP code level, but said that from a public health perspective, knowing a coronavirus victim's name doesn't further the mission of fighting the virus. 

Public safety measure like social distancing are also adding a burden to families because they're unable to attend funerals for those they've lost or be by their side in the hospital, Wooten said. 

"Not only is this a frightening time and a tragic time ... we are disrupting normal grieving traditions and cultures," she said. "I have concerns about how that’s going to look down the road. We’ve added another burden to the family already."

And Wooten said she worries about adding still another burden to these families by releasing identities.

Richland County Coroner Gary Watts said he views the issue of disclosure along similar lines to a suicide. When investigating suicides, coroner's offices will typically only identify a victim if they died in a public place, Watts said. 

In the current environment, there could be a public health interest in identifying a coronavirus victim if they died at a nursing home or other extended care facility where they could have exposed a significant number of people to the virus, he said. But if someone dies in their home, or got sick at home and then was isolated at a hospital, there may not be a pressing need to identify them publicly. 

While coroners may be bound by privacy concerns, families are free to share what they want and can disclose the identity of a relative who's died from COVID-19, Watts said. 

"If they want to tell the story, they have every right to," he said. 

While questions over disclosure remain in South Carolina, the issue is clear in some other states where authorities are releasing victims' identities. 

The Los Angeles County Department of Medical Examiner-Coroner is releasing names of COVID-19 victims in cases it investigates, but only once those cases are closed, said Sarah Ardalani, a spokeswoman for the department. 

"From the decedents we have tested, there are currently three closed cases," Ardalani said. "Of those three, COVID-19 is listed in the cause of death. California is a public records state. As such, the department is bound to provide basic information about decedents who fall under the jurisdiction of the Medical Examiner-Coroner."

However, the agency likely isn't investigating most coronavirus deaths because the majority of victims are expected to die at a hospital or other medical facility, she said. Deaths under those circumstances won't be investigated by the department. 

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Reach Gregory Yee at 843-937-5908. Follow him on Twitter @GregoryYYee.

Gregory Yee covers the city of Charleston. He's a native Angeleno and previously covered crime and courts for the Press-Telegram in Long Beach, CA. He studied journalism and Spanish literature at the University of California, Irvine.

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