A hearing focused on a whistleblower lawsuit filed by a former manager at the state medical examiner’s office depicted the agency as a place where rules were flimsy and where key personnel didn’t get along.
The N.C. Office of the Chief Medical Examiner never had written policies or procedures on how to conduct an autopsy or handle evidence, witnesses in Kevin Gerity’s case testified in a three-day hearing that ended Friday.
The office has also battled budget problems and a contentious work atmosphere where some staff members and pathologists didn’t trust one another, the witnesses said.
The hearing before an administrative law judge provided a rare glimpse into the workings of a state office under legislative review for failing to complete basic steps in death investigations.
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Gerity, a facility manager who used to help pathologists with autopsies, contends he was forced to retire in 2013 after cooperating with a state investigation into mishandled murder evidence. He earned about $55,000 a year.
According to testimony, Gerity was either a contentious co-worker who violated protocol to embarrass a pathologist, or a whistleblower who was forced to resign because his bosses thought he was leaking information to state investigators and the Observer.
Gerity said he was forced to retire from the medical examiner’s office in December 2013, shortly after the State Bureau of Investigation and the N.C. Department of Health and Human Services began investigating the office.
The two agencies were reviewing how the medical examiner’s office handled evidence after the 2011 autopsy of Terrell Boykin, a Cumberland County homicide victim.
Gerity said he found a bullet lying near the examination table after Boykin’s autopsy.
He photographed the bullet, put it in an unmarked evidence bag and took it to Dr. Clay Nichols, who had left the room after performing the autopsy.
But Nichols kept the bullet in a desk drawer and wrote in his final autopsy report that “no bullet is recovered.”
During the hearing, Gerity called the autopsy report “fraudulent.” He said he told his bosses that he found the bullet and gave it to Nichols immediately after the autopsy.
Two years after the incident, an anonymous tipster told the SBI – an event that ultimately led to Nichols’ firing and Gerity’s resignation.
Gerity said he photographed it because pathologists told him they were concerned about the quality of Nichols’ work. Several said they would not testify in cases in which Nichols performed the autopsy, Gerity said.
“Dr. (Sam) Simmons told me I should start documenting things that happened with Dr. Nichols,” Gerity testified. “You have doctors in there saying, ‘How many innocent people are in jail in South Carolina because of Dr. Nichols?’ ”
Nichols served as a pathologist in South Carolina before becoming North Carolina’s deputy chief medical examiner in 2011. He now works in Oklahoma.
Reached by phone Friday, Nichols called Gerity’s comment “stupidly laughable.”
“No one ever told me they distrusted me,” Nichols said.
When asked in court, Simmons said he would be reluctant to testify in the Boykin case “because of all the issues.” Simmons said he would not have left the bullet in his desk drawer, as Nichols did.
Nichols eventually gave the bullet to SBI investigators. He told the Observer that he had kept the bullet in his drawer because he couldn’t verify it came from Boykin’s body.
Simmons also called Gerity’s collection of the bullet “bizarre,” adding that he had never seen it done before. He questioned whether Gerity was trying to get Nichols in trouble.
A lack of rules
Gerity is suing under the N.C. Whistleblower Act, which protects state employees from even the threat of being fired. If successful, he could be reinstated, earn back pay and win compensation for damages. Administrative Law Judge Fred Morrison said he would make a decision in the case within about three months.
Gerity told the court that he resigned in 2013 because he feared that if he was fired, he’d lose his health insurance and retirement benefits.
After the Boykin autopsy, Gerity told Dr. Deborah Radisch, the state’s chief medical examiner, how he found the bullet and gave it to Nichols. He also told her that Nichols’ autopsy report was inaccurate.
Radisch testified this week that she never met with Gerity about his concerns. The matter wasn’t discussed for some two years, Radisch said.
It wasn’t until late 2013 – after the SBI probe, a DHHS investigation and an Observer story about the mishandled evidence – that state officials recommended Gerity be fired.
An SBI agent and Lou Turner, a DHHS official responsible for overseeing the medical examiner’s office, asked Gerity if he had been talking to the media, he testified.
“They thought I was the source of the newspaper leaks,” he said.
Gerity should have called Nichols back into the room to collect the evidence himself, Radisch said.
She acknowledged, however, that her office had no written policy concerning how pathologists or staff members such as Gerity should do their jobs.
“There were no written rules,” testified Dr. Thomas Clark, former North Carolina deputy chief medical examiner. “There were no written protocols.”
The chief medical examiner’s office in Raleigh is responsible for investigating suspicious deaths and determining the causes. Pathologists there perform about 1,300 autopsies a year and review thousands of others.
Clark questioned how someone could be disciplined for an unwritten policy.
Radisch testified Friday that she has been tasked with developing written office rules.
As for the rules the office operated under during Gerity’s tenure, she said, “Most things in the office were known procedures – the way things had been done for many years.”