Death Certificates

Published April 28, 2020

By SCPA Attorney Jay Bender

When I die, I expect friends, acquaintances, and perhaps strangers to ask a common question, “How did he die?”

The answer to that question for all persons who die in South Carolina is recorded on an official state record—a death certificate. If a death is attended by a physician, the physician states the manner and cause of death on an official form. If the death is unattended by a physician, the manner and cause of death is recorded by a coroner or a medical examiner.

Those forms must be forwarded by the physician or coroner to the embalmer or funeral director taking possession of the body, and this information is to be included in a death certificate which is filed by the embalmer or funeral director with the South Carolina Department of Health and Environmental Control.

As this is being written the world is in the throes of a pandemic, and more than one million persons have been infected with COVID-19 in the United States. More than 50,000 have died of the disease or complications from it.

In these circumstances many of us are asking, “How did that person die?” That question in many instances is motivated by a desire to evaluate one’s proximity to the infection. Is the virus in my neighborhood? Is it circulating among my friends? Could I have had contact with that person while they were infected? These are practical questions as our state is in a declared public health emergency, and frontline workers remain exposed to infection while many of us are able to shelter in place.

Unfortunately, DHEC and many coroners think you shouldn’t have that information about specific individuals.

DHEC, which maintains death certificates in its Bureau of Vital Statistics, took the position during the AIDS epidemic that physicians would lie about the cause of death if the public had access to death certificates. There is no question that in the early days of that epidemic when the disease seemed to be infecting only homosexuals, there was in many parts of our society a stigma attached to an AIDS death. I believe the DHEC position defamed the medical profession, and interfered with the ability of society to learn that this wasn’t exclusively a “gay cancer.”

Coroners are elected, and like many elected officials in South Carolina seem to believe that the ability to withhold information from the public enhances their power—the “It’s for me to know” syndrome.

There is no stigma associated with a COVID-19 death. Still DHEC argues that public access to death certificates can be denied. The statutes relied upon by DHEC, and by extension coroners, protect the identity of persons “who have participated in medical testing, treatment, vaccination, isolation, or quarantine programs or efforts by DHEC during a public health emergency.” To me, that makes the secrecy provision applicable only to the efforts by DHEC, and only with respect to those persons who had participated in the DHEC efforts.

What about privacy, you ask. As the Attorney General’s office indicated in a recent official opinion directed to coroners, an individual’s right of privacy does not survive the person. In other words, when I die, I have no right of privacy with respect to my cause of death, and no other person dying in South Carolina has a right of privacy.

DHEC and coroners are acting inconsistently with the public interest, and possibly in violation of the law, when they deny access to the identity of COVID-19 victims.

Jay Bender is a retired University of South Carolina professor and media lawyer who represents the S.C. Press Association and its newspapers.