In Austria, every deceased person must be subjected to an external examination by a physician with the corresponding authorisation (coroner, medical examiner).
Pursuant to the Austrian Death and Funeral Act (Leichen- und Bestattungsgesetz) and the Austrian Midwifery Act, newborns (live births), miscarriages, stillbirths and body parts require an external examination.
An external examination serves to pronounce death, as well as the nature and cause of death. Moreover, the external examination needs to determine if the circumstances surrounding the nature or cause of death make it necessary to commission a post-mortem.
Deaths at a public hospital (definition according to the applicable provincial law) must be examined by the attending and authorised pathologist pursuant to the applicable provision law) in Vienna: Section 4 of the Vienna Death and Funeral Act. This clinical pathologist specialist must be given access to the entire medical history of the deceased person by the attending physicians. If a cause of death can be derived from the medical history, the deceased person can be released for burial by the pathologist after issuing a death certificate.
If a clinically relevant question arises from the medical history or is raised by the attending physicians, the clinical pathologist is authorised to carry out a clinical post-mortem examination.
If it is not possible to determine the cause of death from the available medical history, the clinical pathologist is authorised to carry out a clinical post-mortem examination, even against the wishes of the relatives / next of kin, pursuant to Section 25 of the Federal Hospitals Act. The clinical pathologist must prepare a report on the post-mortem and can then release the body for burial once the death certificate has been issued.
If suspicion of third-party involvement in the death of the person being examined arises when inspecting the medical history or during the clinical post-mortem examination (e.g. condition after road traffic accident and several months in hospital or improper medical attention), the clinical pathologist is obliged, pursuant to Section 54 of the Austrian Act on the Medical Profession to halt any post-mortem proceedings that may have been started immediately and notify the police (e.g. at Vienna General Hospital (AKH) using the ‘Request for a forensic examination’ form).
In case of death outside a public hospital, e.g. in a private hospital, at a care home, in a flat, in public areas (street, public transport, etc.), an external examination is to be performed by a medical examiner from the competent health authority (in Vienna: MA 15).
The medical examiner is to be given a medical treatment certificate or a letter of referral from a hospital by the relatives in order to determine the cause of death.
If the medical documents indicate illnesses that may have led to death by natural causes at any time, the medical examiner releases the body for burial after issuing a death certificate and a document accompanying a corpse (Leichenbegleitschein).
If there are no medical documents or these documents do not indicate any illnesses that may explain sudden death by natural causes, the medical examiner must apply for a post-mortem examination at the competent authority, pursuant to the Vienna Death and Funeral Act, for instance.
If relatives of the deceased suspect that the death was caused by medical malpractice, they may file charges with the police, which almost always results in the body and medical history being impounded by the public prosecutor’s office and a forensic medical expert being commissioned to perform a post-mortem and write a report pursuant to Section 128 of the Code of Criminal Procedure (forensic autopsy).
If attending physicians suspect that the cause of death is due to medical malpractice, they are obliged to notify the police pursuant to Section 54 of the Austrian Act on the Medical Profession (e.g. at Vienna General Hospital (AKH), using the ‘Request for a forensic examination’ form).
Summary of external examination:
Furthermore, the medical examiner is obliged to report notifiable diseases (Epidemic, Tuberculosis or AIDS law) and deaths associated with drug abuse.
In the event of death caused by a third party, suicide, drug abuse of people who died in a public place or in custody, as well as the corpses of infants and toddlers, and if body parts and bones are found, the body or body parts must be subject to a police commissioning by a police lawyer, a public health officer and a civilian law enforcement officer. Depending on whether third-party involvement is suspected, a post-mortem ordered by the court or by the health authorities is to be carried out to establish the cause of death and the circumstances surrounding death. The corpse cannot be released by the police commission. The corpse is released by the medical examiner commissioned by the competent authorities (in Vienna: MA 15, Health Department) or by the forensic medical expert.