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State officials say they withheld autopsies at families' request

E-mail|Link|Comments () November 12, 2009 04:55 PM

By Donovan Slack, Globe Staff

Massachusetts officials said today that they refused to release autopsy reports of two Boston firefighters to federal investigators because family members asked that the reports be withheld.

The federal investigators had been probing the deaths of firefighters Paul Cahill and Warren Payne in a 2007 West Roxbury restaurant fire in order to issue national guidelines to prevent a similar tragedy. But when they asked the state medical examiner last year for copies of the results of toxicology tests performed on Cahill and Payne, they said they were repeatedly rebuffed.

The Globe has previously reported that the results showed Payne had traces of cocaine in his system and Cahill had a blood alcohol content of 0.27, three times the legal limit to drive in Massachusetts. Payne died instantly in a fire ball at the restaurant that the federal investigators concluded was caused by a series of missteps by Boston Fire Department supervisors, according to a report released earlier this week. But Cahill was unable to escape the kitchen even though two other firefighters made it out, raising questions about whether he was impaired by alcohol.

State officials issued a statement today saying that they did not believe they had "clear legal authority" to release the autopsy results to the federal investigators from the Firefighter Fatality Division of the National Institute for Occupational Safety and Health.

Massachusetts law gives the medical examiner discretion over releasing autopsy results and allows their release to investigative bodies, family members and parties to a court case.

"In this case, counsel for the families of the deceased firefighters requested that the OCME(Office of the Chief Medical Examiner) not release the autopsy reports," said the statement released by spokesman Terrel Harris on behalf of Acting Medical Examiner Dr. Henry Nields. "In light of that request and in the absence of clear legal authority allowing the release to the National Institute for Occupational Safety and Health, the OCME was compelled to honor the families' request."

The federal investigators were left to complete their investigation without considering the role of alcohol or drugs in Cahill or Payne's deaths. They said in their report: "NIOSH repeatedly requested a copy of the autopsy reports through the fire department, district attorney’s office, and representatives of the families, but did not receive any toxicology reports; therefore, NIOSH is not able to comment on the alleged condition of the victims."

A spokesman for District Attorney Daniel F. Conley said that his office received an inquiry from federal investigators about the reports last year, but he said the district attorney is not the agency designated to release the reports. "The office of the chief medical examiner makes the final call," the spokesman, Jake Wark, said.

Neil Sugarman, the lawyer for Cahill's wife, Anne, declined to comment. A lawyer for Payne's family members could not immediately be located.

The guidelines ultimately issued by the investigators focused on basic training for firefighters on proper fire ventilation, training for supervisors on incident management and communication. NIOSH typically investigates firefighter deaths in the line of duty that it feels have policy implications for other departments.

Most big-city fire departments across the nation have mandatory random drug and alcohol testing of firefighters. But in Boston, the city and the firefighters union have been locked in a battle over instituting testing since the West Roxbury fire.

Donovan Slack can be reached at dslack@globe.com.