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Dale Earnhardt

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Earnhardt plea gains support of Hodges

BY DAVID CARAVIELLO
Of The Post and Courier staff

     Less than a week after Dale Earnhardt was killed in a final-lap crash in the Daytona 500, his widow filed a lawsuit to prevent a Florida newspaper from obtaining autopsy photographs of the seven-time Winston Cup champion. On Monday, Gov. Jim Hodges made an effort to try to block the release of similar photos in South Carolina.
     "Families shouldn't have to worry about public officials releasing autopsy photos," Hodges said in a news release. "We must make sure that the pain experienced by Teresa Earnhardt and her family never occurs in South Carolina."
     Toward that end, Hodges cited a 1981 opinion by Attorney General Daniel McCloud, advising the coroner in Georgetown County that an autopsy record "constitutes a medical record which is not available for public consumption." Hodges is sending a copy of the advisory opinion to coroners and medical examiners in all South Carolina counties.
     Yet that advisory opinion doesn't have any binding legal authority, according to a Columbia media attorney.
     "It's just like you asking me these questions, and I render you an opinion. That is not a law. It's what my view of the law is," said Kirby Shealy, a lawyer for the S.C. Press Association. "... (The opinion) has some persuasive value, but no court is obligated to follow Dan McCloud's letter."
     South Carolina's Freedom of Information Act does not make medical records subject to disclosure. Shealy argues that an autopsy record is not a medical record, since medical treatment ceases once the patient dies. There is also a statute in South Carolina which allows medical examiners to furnish autopsy photos upon request to any party to whom the cause of death is a material issue.
     Even Gov. Hodges' news release stipulates that the law does not explicitly prohibit coroners and medical examiners from releasing autopsy photos.
     "The governor is just trying to capitalize on current events," Shealy said. "... The governor's statement just says that (he) is on the side of personal privacy, but the governor is not hanging his hat on anything but an advisory opinion of the attorney general, which is not binding upon anybody."
     Shealy added that there is a joint legislative committee currently studying privacy issues in South Carolina, and Gov. Hodges could be trying to sway opinion on the subject.
     Hodges' statement comes one day after Teresa Earnhardt made an emotional plea to race fans to support her attempts to keep the Orlando Sentinel from reviewing her late husband's autopsy photos. Earnhardt flew from North Carolina specifically to address the media at Las Vegas Motor Speedway, making her first public appearance since her husband's death on Feb. 18.
     "We can't believe, and we are saddened that anyone would invade our privacy during this time of grief," she said. "I want to let you know that if access to the photos is allowed, others will demand them, too. And make no mistake, sooner or later the photos will end up unprotected and published ... and most certainly on the Internet."
     Earnhardt encouraged race fans to contact public officials, especially in Florida, and ask that privacy statutes be toughened. Christina Johnson, director of communications for Florida Senate President John McKay, said the office had received 2,055 e-mails and about 50 phone calls by noon Monday in support of Earnhardt's cause.
     Kim Stone, director of communications for Florida Speaker of the House Tom Feeney, said Feeney's district office near Orlando had received 500 e-mails by noon Monday, and taken about 200 phone calls by late Monday afternoon. In comparison, Stone said Feeney's office received about 8,000 e-mails after the Florida legislature announced in November that it could intervene in the disputed presidential election.
     Teresa Earnhardt filed a lawsuit against Volusia County, Fla., on Feb. 22 to stop the release of autopsy photos taken of her late husband. Under Florida law, autopsy reports and photographs are public record unless they are part of an active criminal investigation. A Volusia County circuit court judge, Joseph G. Will, granted a temporary injunction barring release of the autopsy photos. A hearing is expected soon.
     The Sentinel has stressed repeatedly that it has no intentions of publishing or even copying the photos. The newspaper wants a medical expert to review the autopsy photos to determine whether physical evidence supports NASCAR's explanation of Earnhardt's death - that a separated seat belt allowed the driver's face and chin to hit the steering column, fracturing the base of his skull, and that use of a head-and-neck restraining device would have done little to change the outcome.
     The Sentinel has offered to let representatives of the Earnhardt family accompany its medical expert while the photographs are reviewed.
     "Newspapers are not always popular; sometimes newspapers have to ask tough questions; this is one of those times," read a Sentinel response to Earnhardt's statement. "But our mission to the community is to contribute to the debate on how race-car driving can be made safer."