Lesson 2: Liability Exposures

What is the first step in establishing due diligence as mentioned in the lecture?

Reasonable and prudent actions.

What specific conduct represents the core of reasonable and prudent actions for a practitioner?

Acting such that no reasonable person would have an objection or perceive conduct as anything less than satisfactory under the circumstances.

What are the four key components to establish due diligence?

1. Reasonable and prudent actions; 2. Establish and follow standards of care; 3. Training and communications; 4. Documentation.

In terms of due diligence, what must be done with the standards of care?

They must be clearly identified, memorialized, comprehended by those following them, diligently followed, and documented.

What are four benefits of training and communication in a funeral home?

Reviewing legal updates, current regulatory compliance, in-house policies, and understanding risk management duties.

Why is documentation essential for due diligence?

It identifies potential liability exposures and provides a defense to liability claims and lawsuits.

How do courts view due diligence efforts during a civil claim?

They take these efforts into consideration when resolving claims for loss and damage.

What is the key to proving consistent performance of tasks when testifying on the stand?

Consistency in training and documentation.

Define a tort according to the lecture.

A private or civil wrong against a person or his or her property other than by breach of a contract.

How does the lecture define an 'injury' in a tort context?

The invasion of any legal right.

What does the term 'harm' describe in a tort case?

A loss or detriment in fact an individual suffers.

What are the three types of torts to know?

Intentional, neglect, and strict liability.

What is an intentional tort?

An individual knowingly and intentionally acts with the intended result for another to suffer damage.

What is the definition of neglect in funeral service conduct?

An individual carelessly or negligently engages in conduct that results in unintentional damage or loss to another.

What is strict liability as it pertains to torts?

Liability held for conduct without the need to prove the act was either intentional or neglect.

What is a tort claim?

An action by one party to pursue compensation for an injury or loss resulting from an act or omission of another party.

List the duty regarding safeguarding human remains.

Safeguarding care, preparation, and final disposition to preserve public health and safety.

What is the funeral establishment's duty regarding the environment?

Providing a safe work environment for consumers, visitors, and staff.

Around what three areas are family rights often centered in lawsuits?

1. Right to decline or accept embalming; 2. Right of noninterference; 3. Right to privacy and confidentiality.

Under the FTC funeral rule, what is the first instance where a funeral home can charge for embalming?

When state or local law requires embalming regardless of the family's wishes.

Under the FTC funeral rule, what is the second instance for charging for embalming?

When the funeral director has obtained prior approval from a family member or other authorized person.

Under the FTC funeral rule, what is the third instance for charging for embalming?

When the director is unable to get authorization after due diligence, has no reason to believe the family doesn't want it, and obtains subsequent approval.

What is another legal name for the 'right of noninterference'?

Rite of sepulcher.

What does the right of noninterference include?

The right to plan, execute, and attend common funeral activities and provide for a decent and proper funeral.

Provide three examples of errors in final disposition that constitute interference.

Interring the wrong remains, placing remains in the wrong cemetery plot, and shipping remains to the wrong location.

What must funeral directors do if they are unable to fulfill a promise made to a family?

Immediately notify the family.

What personal information about the decedent must remain confidential?

State and condition of remains, cause and manner of death, health history, and family/pedigree information.

Who must give permission before photographs or videos are taken of a decedent?

The person in control of the final disposition.

What is qualified immunity?

A legal condition that protects public officials from being sued for discretionary actions.

When is implied immunity granted to a public official?

When they are acting in the performance of their official duty.

Why can a funeral establishment be held liable for injuries occurring during a service?

Because the funeral director is the professional with the knowledge and expertise to handle funeral service events.

What is the definition of mutilation in funeral service?

Any altering or change made to human remains following death other than by natural causes.

Why is embalming considered a form of mutilation?

Because it alters and changes the body.

List four examples of unauthorized mutilation actions (excluding embalming).

Unauthorized removal of a mustache or beard, removing tissues, donating body parts, or performing medical procedures.

What is an autopsy?

An examination of human remains to determine the cause and the manner of death.

What is the 'cause of death'?

The disease or injury that led to death.

What is the 'manner of death'?

The mode of death, such as accident, homicide, natural death, or suicide.

Who investigates questionable or unattended deaths and is a trained physician?

The medical examiner.

What is the role of a coroner?

To investigate the cause of death when there is a question like an accident, suicide, homicide, or no doctor is in attendance.

What is the definition of a lien?

A right to keep possession of property belonging to another person until a debt owed by that person is discharged.

What is replevin?

An action to recover possession of wrongfully withheld personal property.

Why can't a lien or replevin action be filed against human remains?

Because they are not legally real or personal property, but quasi property.

What is a summary rule for withholding human remains for payment?

No person may withhold remains or cremated remains due to a debt or waiting on payment for goods and services.

Define mental anguish.

Mental suffering, including distress, anxiety, and grief, which can be the basis for a lawsuit.

What are the three sources of mental anguish mentioned in the transcript?

Intentional infliction of emotional distress, an outrageous act, or a gross negligent act.

What is an 'outrageous act' in the context of mental anguish?

An act that is beyond the bounds of decency and is regarded as intolerable in a civilized community.

What is a 'gross negligent act'?

An intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another.

How is malpractice defined in funeral service?

The failure to perform a professional service with the ability and care exercised by others in the profession.

What is another term for malpractice?

Professional negligence.

How should a funeral director manage aftercare risk?

Verify that organizations or individuals providing services have appropriate training, insurance, and required certifications or licenses.

What is the definition of Clinical death?

The cessation of all vital functions and signs.

How is Brain death defined?

The total and irreversible cessation of brain function and activity as indicated by an EEG.

What is a corpse?

The body of a dead human being derived, deprived of life but not yet entirely disintegrated.

When a corpse is intended solely for scientific study and dissection, what is it called?

A cadaver.

If an excavated body has no soft tissue and only bones remain, how is it classified?

A skeleton.

What constitutes real property?

Land and all of its improvements, such as a tree, a house, a well, a fence, or a barn, that are actually attached to the property.

What is the definition of personal property?

Everything that is not real property and is not attached to the land, such as a car or clothing.

What does the no property theory state?

A dead human body is not real or personal property in the traditional or common sense.

What is the status of human remains according to the quasi property theory?

Human remains are quasi property, meaning they are treated as if they were property for the purpose of disposition only.

Historically, what were the two primary reasons for the proper disposition of human remains?

Sanitation reasons and spiritual reasons.

In the context of funeral law, what is police power?

A type of power that states use to define duties and responsibilities to fulfill public duties and provide for proper and decent dispositions.

What determines who has the right to control a final disposition?

State laws.

What are the four common classes of people who may have a right to control final disposition?

The surviving spouse, next of kin, guardian, and volunteers.

How is the next of kin defined?

Family members with a biological blood relationship to a decedent, including adopted children.

What is the degree of kinship?

The relationship level of kin, such as children, siblings, and parents.

What situations are considered when identifying a surviving spouse for disposition rights?

Divorce, separation, estrangement, and domestic relationships.

Who is a guardian in a legal sense for disposition?

A person appointed by a court to handle the affairs of those that are incompetent by virtue of age and or legal disability.

What is the typical priority placement of a volunteer on a state priority list?

At or near the bottom of the state priority list.

How can a person use prefunded preneeds to influence disposition?

Some states allow a person purchasing a prefunded preneed to designate the person who will control the final disposition of their remains.

How may a person be appointed to handle disposition via a written instrument?

Through a statute naturally providing for an agent, or through an appointment made in a last will and testament.

What is an oral declaration for final disposition?

Statements made in the presence of witnesses regarding disposition preferences.

What special relationships are recognized by some states for inclusion in priority lists?

Domestic partners and common law marriages.

What happens when a person with a priority right provides a waiver?

They waive their right to control final disposition, and the right automatically falls to the next succeeding person or class listed in the statute.

Can a person waiving their right to control final disposition pass that right to a specific person of their choosing?

No.

What is a court-ordered exception to a person having a priority right?

If the person was the subject of a court order or legal directive protecting the decedent, such as in cases of spousal abuse.

How does an arrest affect a person's right to control final disposition?

If the person was under arrest or charged with a crime related to the death of the deceased, they may lose the right.

What are the five conditions that can cause a person to lose the right to final disposition?

Court order/legal directive, arrest for death-related crime, not reasonably available, unwilling to serve, and legally incompetent to serve.

What condition applies if a next of kin is in the military or lives in another country?

They are considered not reasonably available to serve.

What is the purpose of secondary priority rights?

To mandate that a state, county, or municipal official provide for the decent and proper disposition of remains when no one on the primary list can be identified.

List four examples of government officials who may handle secondary priority rights.

County administrator, state public health administrator, social service director, or city health commissioner.

What is actual custody of human remains?

The physical possession of human remains.

What is constructive custody of human remains?

The right to acquire custody and possession, although others have actual physical custody.

In most cases, who has actual custody of the remains?

The funeral home.

In most cases, who holds constructive custody of the remains?

The family or next of kin.

What right allows a person with priority to give remains to a funeral home?

The right to convey actual custody to a funeral service practitioner.

In a survivor dispute, who are the parties involved?

The individuals who cannot agree on who has the priority right to control a final disposition.

Does the funeral director function as a party in a survivor dispute?

No.

If parties in a survivor dispute cannot settle, who must resolve the issue?

A court of law (a judge).

What is the limit of a funeral director's services while a body is in dispute?

They cannot provide goods and services beyond safeguarding the human remains, such as refrigeration.

What is the term for the responsibility for debts and the state of being legally obligated?

Liability.

What are the four sources primarily used to determine who is liable for funeral expenses?

Contract, the estate, volunteers, and public authorities.

What is an express contract?

A contract that clearly and plainly sets out the terms agreed to, usually in written form.

What is an implied contract?

A contract legally binding by virtue of the actions, acts, or conduct of at least one of the parties.

What is a quasi contract regarding funeral removals?

An obligation raised in law where parties made no promises, requiring payment for services like removal even if no contract was signed.

Which entity has the primary responsibility to pay for funeral expenses if no other contract exists?

The estate.

What does it mean if an estate is insolvent?

It is unable to pay the money owed.

What does it mean if an estate is solvent?

It is able to pay the money owed.

In an insolvent estate, what is a preferred claim?

Highest priority claim that has an advantage or privilege over others, typically held by the funeral home.

What is a secured claim?

A claim supported by a pledge, a mortgage, or a lien on assets belonging to the debtor, like a car loan.

What are unsecured claims in an insolvent estate?

Claims not supported by a pledge, mortgage, or lien, such as a credit card or light bill.