dissenting.
When a medical examiner makes a subjective determination that an autopsy is advisable and in the public interest then his actions are within the scope of his authority. The majority opinion holds that a forecast of the evidence clearly shows that Dr. Kaasa, the medical examiner, was acting within the scope of his office (slip opinion, page 6) and within the scope of his authority (slip opinion, page 8), but that there is a genuine issue of fact as to whether Dr. Kaasa “acted in reckless disregard of plaintiffs rights by ordering an autopsy without first having made further reasonable investigation as to the circumstances of Mr. Grad’s death.” I strongly disagree that a forecast of evidence raises a genuine issue as to whether Dr. Kaasa acted recklessly.
Under all the facts of this case there was no legal duty to make “further reasonable investigation,” and no standard exists *135by which to measure this “further reasonable investigation.” In spite of the allegation that the plaintiff and defendant had known each other through a previous nurse-doctor working relationship, this did not create a legal duty on Dr. Kaasa, while performing his duties as medical examiner, to telephone plaintiff and ask for her permission to perform an autopsy. All of the evidence shows that Dr. Kaasa acted in good faith. There is not a spark of evidence that Dr. Kaasa acted with malice or corruption.
It is of critical importance that even though the medical examiner may have been able to determine from the general information furnished to him that Mr. Grad had suffered a cardiac arrest, the cause of such cardiac arrest could not have been determined short of an autopsy. With the cause of death unknown, the duty lay within the medical examiner to determine if the cause of death was related to trauma, injury, natural causes, or accident. The record shows that there were extensive injuries to the head and face of Mr. Grad. Plaintiffs complaint and forecast of evidence argues that because she can prove as a fact that Mr. Grad had prior heart trouble that this fact alone should have conclusively eliminated the possibility of death by trauma, accident, or unknown causes, and that therefore it was malicious and corrupt for Dr. Kaasa to determine in his medical examiner discretion that it was advisable and in the public interest to perform an autopsy.
North Carolina has created a system of professional medical examiners which grants them the duty and discretion to use their judgment in deciding when to perform an autopsy under statutory situations. The General Assembly has granted medical examiners immunity from civil lawsuits when acting within the scope of their authority and when not acting corruptly or maliciously. The courts should not take away this immunity.
As our Supreme Court said in Smith v. State, 289 N.C. 303, 331, 222 S.E. 2d 412, 430 (1976), reversed on other grounds, 298 N.C. 115, 257 S.E. 2d 399 (1979), “As long as a public officer lawfully exercises the judgment and discretion with which he is invested by virtue of his office, keeps within the scope of his official authority, and acts without malice or corruption, he is protected from liability.”
*136Further, I would hold as a matter of law that plaintiffs use of the affidavit of Dr. Edward J. Notari in her forecast of evidence fails to create any issue of fact on the issues raised in these pleadings, and that the affidavit is of no value in this case.
I dissent and would vote to affirm the granting of summary judgment for the defendant.