FSL- Funeral Service Practitioners

Funeral Practitioner

Aka “Funeral Director”

 Funeral Service Practitioner–

 A person __________ in preparing dead human bodies for

disposition.

 Properly licensed;

 Engaged in, or conducting; or

 Holding himself/herself out as being engaged in

 Does not include embalming.

 Split license states

Due Diligence

The attention

 Reasonably expected from, and ordinarily exercised

 By a person

 Who seeks to satisfy a legal requirement or to

discharge an obligation

Funeral Service Due Diligence

 Reasonable and prudent actions

 Establish and follow standards of care

 Quality training

 Legal Compliance

 Risk Management

 Communication

 Legal Compliance

 Risk management

 Documentation

• Inventory of Personal Property

• Written authorizations

• Embalming case reports

• Releases

• Inspection report for third- party crematory

Statutory Duties of FD’s

Obtaining permits for

disposition

 Death Certificate

 Burial permit

 Transit permit

 Cremation permits

• Embalming under certain circumstances.

FD Contractual Duties

 FD/Business is in breach when

services are not carried out as

agreed upon.

 Damages often include emotional

distress

Two Types of Compensatory Damages

• Compensatory Damages

• Non-Compensatory

Compensatory damages –

 An award paid to the injured party

 To cover the exact amount of their loss

 No more.

Nominal damages

 Small amount awarded

 There is a technical breach, but no injury

Punitive Damages

▪ An award paid to the plaintiff

▪ To punish the defendant

Liquidated damages

▪ Reasonable damages

▪ Cannot be a penalty

▪ Stipulated in a contract

▪ To be paid in the event of a breach

Negligent Embalming

Standard of care – Skill and

care of a reasonably prudent

and careful person skilled in

the art of embalming

Negligent Funeral Directing

The failure of a FD to perform the duties

involved in directing the funeral service.

 Examples:

• FD failed to supervise a burial, and decedent was buried in a shallow grave without a vault

• FD left the family after they arrived for graveside service when the grave was not properly prepared. The FD told the family, “They were in a hurry for another funeral

Failure to Safeguard the Body

 Duty that exists between FH and

family.

 Fail to take reasonable precautions.

 Ex. Locking doors

Breach of Confidentiality

May be express and/or implied

 Exs.

 Failure to comply with the family’s request for

privacy regarding death or funeral arrangements.

 Failure to exclude unwanted visitors from the

funeral or disposition.

Defective Merchandise

 Held to the same warranties as merchants

 Implied warranties:

 Merchantability

 Fitness for a particular purpose

 Examples:

 Casket falls apart

 Casket did not close properly

Transportation

When supplying cars for decedent and family...

 Legal duty to transport passengers in a

safe and non-negligent manner.

 If a passenger is injured = Breach

 Driver has to be an agent of the FH.

 No agency = No control = No liability

• not the same as families taking their own cars, this is specifically if the FH is providing them

• If injured in FH Car= Breech of Contract, Crash in their own car= consequences up in the air

Transportation: When in procession

Volunteer Drivers

• Drivers not under the control of the funeral director.

• No control = No agent

• FD no liability

Agent Drivers

• Drivers under the directions and control of the funeral establishment

• Is liable for the driver's negligent actions.

• Control = Liability

Livery

• Automotive equipment made available for hire.

• FD liable if held out cars and drivers as their own.

Two Primary Duties under common law on how the FD should act

Duty not to interfere with the right to burial

 Duty to exercise reasonable care to keep the funeral home

premises or other places under the control of the FD in a

reasonably safe condition. (duty to keep family/facility safe)

 Breach of these duties will likely result in tort litigation

5 ways FDs violate duty

• Wrongfully Withholding A Body

• Loss of the Body

• Mutilation of the Body

• Injury to Invitees

• Injury to Pallbearers and Clergy

Pallbearers

Wrongfully Withholding the Body

Refuse to surrender/release the body upon

the demand of the PWPRD.

 Interferes with right to custody.

 Right to custody - In the condition that it was left in at the TOD.

 “Morally reprehensible”

 Also applies to:

 Personal property

 Cremated remains

Wrongful Witholdings that Don’t Apply to Human Bodies

Lien –

 Claim or charge

 Against real or personal property

 For payment of some debt.

Replevin –

 An action

 To recover possession of wrongfully withheld

 Personal property.

 Attachments

Loss of the Body

Inappropriate interment

 Precursor to “Wrongful cremation”

 Ex. FH misidentified bodies, and the FH incorrectly interred the

wrong one.

Mutilation (of the body)

Any altering or change made

• Embalming, RA, Removal of Hair, Removal of Tissue/Organs, Removal of Medical Devices

 See sign

 To a dead human body

 From the time of death

 Other than by natural causes.

Interferes with right of possession

 FD may with permission to embalm.

 Plus procedures required for normal

embalming.

Unauthorized Autopsy

• Private

 Must be authorized

 Includes retrieval of samples

• Exceptions:

 Contractually required

 Right of public officials

 Coroner/ME

 Health officers

Coroner vs ME

• Coroner –

 A public officer (elected)

 Duty = Investigate cause of death

 When the question of accident, suicide, or homicide may be evident

 Or where there was no doctor in attendance.

• Medical examiner–

 A forensically-trained physician

 Duty = Investigate questionable or unattended deaths.

 Has replaced the coroner in many states

Invasion of Rights

Unauthorized photos

 Contrast with authorized

 Disposition in the absence of NOK

 Failure to comply with the wishes of the party with the right to control the funeral

 Public officials act beyond immunity

Mental Anguish

In some jurisdictions, physical manifestation may be necessary to justify

 May arise from...

 Intentional Infliction of Emotional Distress:

 Intent/Recklessness

 Extreme or outrageous conduct

 “Beyond the bounds of human decency such that it would be regarded as

intolerable in a civilized community”

 Vulnerable relationship

• Traditional Impact: some physical injury is required for a plantif to seek mental anguish

• Trend: necessity of physical injury/’impact’ is not always needed now

Mental Anguish may come from

 Negligent Infliction of Emotional Distress:

• No intent

 Breach of a personal service contract

 Intentional Infliction of Emotional Distress