Mortuary Law Chapter 5 Flashcards
- Statutory laws of the state
- Requirements under the funeral contract
- Common law
Sources of the Funeral Director’s Duties
- Permits
- Health Laws and Regulations
Statutory Duties
The funeral director is required to obtain permits from appropriate authorities to arrange for the proper disposition of the dead (in nearly all jurisdictions).
- Death certificate
- Burial permit
- Transit permit
Permits
State and municipal statutes and regulations whch require these permits have been upheld by courts as reasonable exercises by the state of its ___ ___ to protect the health of the public.
Police Powers
Regulate the practice of embalming and funeral directing, what the law does and does not require with regard to embalming, refridgeration, and disposition.
Health Laws and Regulations
- Half of the states require embalming under certain circumstances.
- Arizona, Colorado, Delaware, Idaho, Oklaholma, South Dakota and Texas- a body must be embalmed, refridgerated, buried or cremated within 24 hours of death.
- Other states require 48 (Iowa), 50 (Massachusetts), some as long as 72 (Minnesota) hours.
- Requring embalming for transportation (Kansas and Maine)
Health Laws and Regulations
When the funeral director enters into a funeral contract, whether oral or written, he promises to undertake certain obligations. If the funeral director breaches these obligations, he is liable for the damages that follow as a result of his breach.
Contractual Obligations
More often than not, involve the emotional distress that can result to survivors when the services of the funeral director are not carried out as promised.
Damages due to Contractual Obligations
- Negligent embalming
- Negligent funeral directing
- Safegard the body
- Privacy
- Defective merchandise
- Transportation
- Aftercare
Breaches of Contractual Obligations which often may end up with Litigation
When a funeral director contracts to embalm a body, he undertakes to use the skill and care of a resonably prudent and careful person skilled in the art of embalming. If the embalming falls short of that standard of care, the funeral director will be liable for the damages that result tereform.
Negligent Embalming
The failure of a funeral director to perform the many duties involved in directing the funeral service will give liability.
- liable for failure to honor requests made by the family.
- Substaintial liability can be imposed for what appear to be minor errors of judgement
- Failure to be sure the vault is closed and grave is has been properly prepared
- Preparation of the body to prepare for funeral
Negligent Funeral Directing
Althought cases of mentally deranged people sexually assulting or harming bodies are rare occurrences, a funeral home may be liable for such generally unforseen occurrences if it does not take reasonable precaution to safeguard the body. It is a special duty of care that exists between a mortuary and a bereaved family who leaves the remains of their loved one in the care and custody of the funeral home.
Safeguard the Body
If funeral directors fail to comply with the survivor’s requests for confidentiality regarding the death or for privacy during the funeral arrangements, they can be held liable for breach of contract.
- Prohibiting photography
- Excude unwanted visitors from the funeral or burial. (Cemetery and Funeral home)
Privacy
Funeral directors, as purveyors of merchandise, are held to the same implied warranties that other merchants are. By law these implied warranties, which include the implied warranties of “merchantability” and “fitness for a particular purpose,” involve promises that the products are fit for the ordinary and particular purposes for which such goods are used. Unless these warranties are properly disclaimed, the funeral director will be liable if the merchandise prove defective.
Defective Merchandise
A funeral home supplying the hearse and limousine for the conveyence of the body and the mourners respectively is a private carrier and, as such, is charged with the legal duty to transport its passengers in a safe and non-neligent manner. If the funeral home fails to exercise ordinary care in carrying out the transportation and, as a result thereof, a passenger is injured, the funeral home will be liable for breach of contract.
Transportation
In transportation, in order for the funeral home to be liable, it is necessary to show the negligent driver of the vehicle was an ____ of the funeral home.
- employee of the funeral home
- limousine service that represents such cars to be owned by the funeral home
Agent
Refers to grief counseling, support groups, or other grief facilitation activities sponsored by funeral homes. (past 20 years funeral homes have provided this). Similar claims have been brought against priests and ministers who attempted to counsel individuals and failed to recognize sucidial tendencies.
- No such cases brought against funeral homes, but there is risk of some type of malpractice action.
Aftercare
- Do not refer to grief counseling as therapy or the counselor as a therapist. Terminology such as grief facilitator is recommended.
- All funeral home employees that participate in the aftercare program should have grief facilitation training.
- The grief facilitator should be trained to refer any serious or apparently serious problems to a psychologist or psychiatrist.
- The grief counseling or aftercare program should be covered by the funeral home’s malpractice insurance.
To avoid claims against aftercare, aftercare activities should undertake the following:
Where there is a violation of duties (Contracts, operation of law) with resulting damages, a tort has been committed and the court will award damages to those who suffer as a result of violation of the legal duty.
Tort Liability
- The duty to not interfere with the right of burial.
- The duty of exercising reasonable care to keep the funeral home premises or other places under the control of the funeral director in a reasonably safe condition.
Two duties recognized by the law which impart directly on the funeral director
- Wrongfully withholding a body
- Loss of the body
- Mutilation of the body
- Injury to invitees
- Injury to pallbearers and clergy
Violations of the two duties recognized by the law whch impact directly on the funeral director
The common law generally recognizes that the surviving spouse or the next of kin has the right to the custody of the body, in the condition that it was left in by death, and that such a person gas the right to bury it without interference. The refusal to release the body by a funeral director who has prepared it for burial until he has been paid for his services is widely recognized as an actionable violation of the family’s right to burial without interference.
Wrongfully Withholding a Body
Cases where the funeral home has misidentified bodies and the funeral home incorrectly interred the wrong one.
Loss of the Body
The right to possession of the body for the purpose of burial carries with it the right to recieve the body in the condition it was in at the time of death. If the body is mutilated, a tort is committed.
- Mutilation (althought slight and necessary) is involved in embalming a body. Generally, a funeral director has a right to do this as the mutilation is implicitly sanctioned by the permission given to embalm the body.
- If the body is embalmed without permission, the tort of mutilation of the body occurs.
Mutilation of the Body
A second and less likely incidence of mutilation involving funeral directors can occur with ____ _____. If this is not authorized by the next of kin or is not duly ordered by the coroner in the lawful discharge of his duties, it constitutes an actionable tort.
- Althought funeral directors do not typically conduct these, they still may be liable if the participate in it or consent to it without the authorization of the NOK.
- If the funeral director accedes the demands of the coroner and makes the body available, he will not be liable if this is not authorized.
Unauthorized Autopsy
A postmortem examination of the body, usually for the purposes of determining the cause of death.
Autopsy
The funeral home owes the duty of care to each invitee to the funeral home to maintain the premises in a reasonably safe condition for its intended use. The chapel, staterooms, means of ingress and egress, restrooms, and other facilities must be maintained in a reasonably safe condition in order that such invitees in the exercise of ordinary care will not suffer injury.
Injury to Invitees
The degree of duty of care a landowner owes to a person on the landowner’s property depends on the:
- a high degree of care is owed to the one invited on the property by the landowner
- A tresspasser is owed very little degree of care
- Because invitees of a funeral home are in an emotionally disturbed state, funeral directors should expect that they will be somewhat less prudent in looking out for themselves than the ordinary person would be.
Status of the Person
Required to take precations for invitees against _____ and ___, especially during services when people will be coming in and out of the funeral home.
Snow and Ice
A funeral director will be liable for an injury suffered by a pallbearer (those who voluntarily carried the casket) or a member of the clergy if the injury is caused by the tort of the funeral director.
Injury to Pallbearers and Clergy
- Physical impact
- Intentional infliction of mental distress
- Contractual breaches
- Negligent infliction of mental distress
- Punitive damages
Mental Anguish
The courts are very reluctant to award damages that cannot be measured with some precision. For this reason, it was traditionally recognized that plaintiffs could nto recover monetary damages merely for mental disress or anguish suffered as a result of a contract breach or tort. The courts required some other physical indica of injury before permitting a plaintiff the right to seek recovery for mental anguish.
Physical Injury
The necessity for showing physical injury prior to any recovery for mental anguish is slowly being eroded in American law. The requirements have generally been changed from physical injury to physical impact. Thus, it is only necessary to show that there has been some physical impact rather than injury as a threshold to recover damages for mental angish.
- Courts sometimes find a way around this or abandon it.
Physical Impact
Permits the recovery of damages for mental anguish by the plaintiff when the defendent’s conduct is “intentional, wrongful, outrageous, reckless and malicious and done with the intention of causing the plaintiff severe emotional distress.”
Intentional Infliction of Mental Distress
- The personal nature of the funeral contract itself puts the funeral director on notice that a breach thereof would probably result in mental anguish, held the damanges from mental anguish could be awared in cases involving breaches of funeral contracts.
- Even in the absence of physical trauma because the contract is concerned with life and death matters of mental concern and solicitude.
- Means to maintain professional standards in the funeral industry
- Damage for mental anguish is often the only method to compensate victims of wrongful acts by funeral directors.
Contractual Breaches
Permit the recovery of damages for mental anguish in those cases where the wrongful conduct consists merely of simple negligence as opposed to malicious or reckless conduct.
- States that have this are in the minority
Negligent Infliction of Mental Distress
Awarded by a court to a plaintiff not to compensate the plaintiff for damages suffered, but to punish the defendent.
- Not awarded in cases of simple negligence where the defendent unintentionally caused an injury.
- Given only in cases when the defendant’s conduct has been so outrageous as to justify punishment.
Punitive Damages
Most liability insurance policies will not cover awards for these. Therefore, while funeral director’s liability insurance will normally cover damages arising out of the funeral director’s negligence, any recovery of these kind of damages must be personally paid by the funeral home.
Punitive Damages
