Orange County Staff Report : Bids on Autopsies Urged After Evidence Mix-Up

Pathology work performed for the coroner’s office by three Anaheim doctors under an 11-year-old county contract should be opened to competitive bidding, according to a staff report that will go to the Orange County Board of Supervisors today.

The report comes on the heels of a shake-up, confirmed Monday, within the pathologists’ office. One of the three doctors has been removed by his two partners from handling homicide cases because of missing evidence in a two-year-old murder trial.

Dr. Walter Fischer, 56, will handle only “low-profile” autopsies for now, said Dr. Richard I. Fukumoto, president of the pathology partnership with Fischer and Dr. Robert Richards.

The three pathologists have been doing autopsies for the coroner’s office since the 1960s, and began working for the county under a formal contract in 1974. It is a non-bid contract that pays $100 for each autopsy performed. The doctors estimate they handle about 2,000 autopsies a year for the county.

The county administrative office five months ago began a study of the sheriff-coroner’s office at the request of the county supervisors, who asked for a recommendation on whether sheriff and coroner should be separate offices.

The supervisors made their request after learning that Sheriff-Coroner Brad Gates had confiscated the psychiatric files on a jail inmate who died last November in an apparent suicide.

County mental health officials who work at the jail had refused to supply coroner’s investigators with the inmate’s records, citing the confidential relationship between patient and doctor. The sheriff would not have seized the files in defiance of the county mental health officials were it not for his role as coroner, critics said.

The board has the authority, under state law, to separate the coroner’s and sheriff’s offices.

Larry Holms, acting director of the county administrative office, on Monday refused to give any details about the report. Supervisor Thomas F. Riley said Holms did not tell him what the recommendation would be, but Riley said Holms did tell him the report will recommend competitive bidding on pathology work for the coroner.

Routine Approval

The Board of Supervisors in previous years routinely approved without debate the contract with the firm that does the autopsies.

Fukumoto and Fischer said their office would bid for the work if the supervisors go along with that recommendation.

“I don’t think you will find anyone willing to do the work for as low as our price is,” Fischer said. “We could offer a bid twice as high as we’re charging now, and I’ll bet we’d be the low bidders.”

Fischer said the $100 fee must cover not only the time spent on doing the autopsy, but also consultations with other doctors on the deceased person’s history, and court appearances.

Fukumoto expressed concern that bidders who are not certified forensic pathologists would seek the contract. All three of the Anaheim doctors are forensic pathologists, specialists in homicide cases.

“If a (non-forensic) pathologist testified in court for the prosecution and a forensic pathologist for the defense refuted him, I think it would be difficult for jurors to give credibility to the (non-forensic) pathologist,” Fukumoto said.

Riley said he asked Holms on Monday to consider recommending the hiring of consultants to audit the performance of the pathologists in terms of their medical competence.

‘Enough Audits Already’

“However, I expect that Holms will say that we’ve had enough audits already,” Riley said. “We’ve had several audits of the coroner’s operations over the years. All of them seemed to suggest that there weren’t any serious problems. You would think that if law enforcement had anything serious to gripe about, they would have told us at least once in the 11 years I’ve been here, but they never did.”

Riley said Holms assured him the CAO recommendations were reached well before the emergence of the controversy surrounding the pathologists’ office because of the missing evidence in the 1983 murder trial.

Fischer was an important witness two years ago against Darrell Roberts, a Santa Ana man accused of murder in the 1981 death of 2-year-old Julius Caesar Mathias, the son of his girlfriend. Fischer testified that bruises on the child’s body occurred between two to eight hours before his death. The boy had been in Roberts’ custody seven hours before he died.

Fischer based his testimony on a review of tissue samples taken from the child’s body, but only 36 of the slides were known to the prosecution and the defense at the time.

Roberts’ first trial ended in a hung jury, and he returned to Superior Court three weeks ago for a second trial. After a jury had already been chosen, attorneys in the case discovered that Fischer had at least 72 specimens of tissue samples, not just 36.

Discovery Rules Breached

Under court discovery rules, the extra slides should have been made available to attorneys during the first trial.

Judge David O. Carter dismissed the second jury and is conducting a hearing on a defense motion for dismissal of the case because of Fischer’s error.

Fischer testified at the hearing that he had mistakenly placed the extra slides in a shoe box in which he kept specimens relating to drowning deaths.

Fischer said in an interview on Monday that he based his testimony in 1983 on the first 36 slides, but that his testimony would have been “basically the same” if he had reviewed all 70-plus slides.

It is not clear whether there are 74 slides, or 72. Only 71 slides have been produced in court, and one of the original 36 is missing. Fischer said he does not know if two others are also missing or he miscounted them.

Carter is to lead a tour of the offices of Richards-Fukumoto-Fischer on Wednesday, at the request of Roberts’ attorney, Milton Grimes.

Fischer was also the pathologist who admitted that he misread tissue-slide evidence last year in the case against Dr. Tony Protopappas, who was convicted of second-degree murder in the deaths of three of his patients.

Comment From Partners

“Dr. Richards and I have talked to Dr. Fischer, and we have all agreed that it’s best that he stay away from homicide cases until he’s had a chance to build his confidence back up,” Fukumoto said.

Fukumoto praised Fischer’s performances of autopsies and his dedication to pathology. For example, Fukumoto said, Fischer was studying drowning victims for comparative analyses with eye hemorrhaging in battered-child cases.

“He’s a fine doctor, but right now he’s taking a beating because of the Roberts case,” Fukumoto said. Fukumoto said Fischer will continue carrying a full work load of coroner’s cases, but in the near future will not handle cases that might involve court testimony.

Fischer said Monday he does not disagree with the decision that he perform only “low profile” autopsies.

Fischer said he needs to establish renewed confidence in his work within the district attorney’s office.

“As part of the change, we’ve been talking with the district attorney’s office about improvements in communication,” Fischer said. “I’m convinced everything will work out fine.”