Protecting Your Business From Prep Room Related Lawsuits

Melissa Johnson Williams, CFSPExecutive Director, American Society of

EmbalmersApril 8th, 2010

Prevention is the Best Defense!

• Tales from the Crypt for Psychiatrists: Mourning, Melancholia, and Mortuary Malpractice. 1996. Study American Academy of Psychology and Law.

• Psychiatric evaluations of 25 bereaved plaintiffs from 9 malpractice lawsuits

• “acute emotional turmoil made them more sensitive to disrespect and insensitivity toward the deceased”

REAL Headlines

• “Dead Grandmother’s Brain Sent to Family in Bag of Personal Belongings”

• “Lawsuit: Funeral Home Wouldn’t Adjust Body in Coffin”

• “Bad Embalming? Family Sues Funeral Home”• “Family Discovers Wrong Body at Viewing”

REAL Headlines

• “Funeral Home Fined, Kept Body for Five Months Unrefrigerated”

• Man Suing Over Wrong Body in Casket”• “Grieving Family Discovers Wrong Body in

Casket After Relative is Mistakenly Cremated”• “Family Sues Funeral Home Over Bad Corpse

Condition”Lawsuits usually last 2-3 years!!!!

Standard of Care

• Definition of “standard of care” as found on www.legal-dictionary states the following: “the watchfulness, attention, caution and prudence that a reasonable person in the circumstance would exercise.”

• Thorough, complete preservation, head to toe, no minimum standards.

“we bury our mistakes”

Lawsuit

• The decedents feet were inadequately embalmed and started to smell.

• The funeral home opened the windows in the chapel and put potpourri in the casket.

Documentation

• “If it’s not documented, it didn’t happen.”

• Every service is a lawsuit waiting to happen.

Transfers

• Who do you use?FH Staff:– trained, physically fit to do the job– proper use of equipment

Transfer Service:- licensed, insured, trained

- Does your insurance cover them?Identification prior to transfer is critical!

Arrival at Funeral Home

• Logs: time in and time out and by whom• Where is decedent placed?– Garage: extremely problematic due to

accessibility– Prep Room: temperature, accessibility– Refrigeration: temperature logs

Embalming Policies

• Legal authority to embalm, documented?• Embalming Case Reports: BEST LEGAL

PROTECTION– Completely filled out (use N/A for blanks)– Filled out until no longer in FH custody– Photo to document pre-embalming condition– Chemicals used, Trauma/RA treatments– Post-embalming care: plastics etc. (critical with

ship-outs)

Funeral Home Staff

• Communication between embalmer and arranger?

• Embalmer’s qualifications.• Interns• State/Local Laws• Ongoing education.

Professional Embalmer/Trade Service

• Liability insurance?• Properly licensed?• Ongoing education?

Chemicals and Supplies

• Who orders them?• Full range of chemicals and supplies available?• Does the embalmer know the

purpose/function of the chemicals they use?• Could the embalmer tell someone in “lay

terminology” how the chemicals function?

Dressing/Casketing/RA

• Hairdresser: insurance, communication

• Documentation: who performed each task

Preparation Room

• Who cleans up the prep room?• What is the role of assistants?• If an inspector showed up would you:– know the condition of the prep room– be confident of no issues/concerns– try and get them to come back at a later time

• Know what is happening in your prep room!

Don’t Blame the Other Funeral Home!

• Are you prepared to assist the family?• Bring them in ASAP upon discovery of a

problem.• Document for them (photo/video) and case

report to use if they decide to sue.• Be prepared to go to court.

Complaints

• Do you require that the casket and deceased be checked before the family comes in each day?

• How do you document complaints (valid or not) and where?

• Require written statement by everyone involved ASAP.

• Honest evaluation of the concern, not the “ostrich method of defense”!

Complaints (cont’d)

• Whether valid or not….immediately:– APOLOGIZE– FIX IT– OFFER COMPENSATION– If family is still not satisfied, CONTACT YOUR

LAWYER!

• Find out what went wrong and fix it for the future….debriefing!

What the Attorneys Know

• They purchase embalming textbooks.• Talk to other attorneys about this type of

litigation.• Talk to embalmers and FDs.• They hire expert witnesses.• They hire investigators, handwriting experts,

chemists etc.

What the Attorneys Know (cont’d)

• They acquire copies of ALL your documents, not just those from this particular case.– Copy of register book with name of attendees.– Information about other services at the same time.– Employment records and pay information.– Interview all personnel involved with the case and

other employees at the TIME of the case.• They will take depositions from everyone.– Clergy, attendees, other families being served,

vendors etc.

Recommendations

• Say you are sorry!!!• Try and resolve without involvement of your

insurance company early, give rebate/credit and talk with your attorney.

• Don’t cover up, there will be depositions and everyone’s “version” will be scrutinized.

• Do not change any original documents.• Make changes to your process now before you

have a problem!

How to Avoid Risk and Expensive Litigation

American Funeral DirectorAugust 2005

Richard M. Williams Esq.

Training

• single most important principle

• initial and ongoing

• at every level of service

• The Golden Rule

Disclosure and Communication

• Second most frequent cause of litigation is failure to disclose the nature of services to consumers.

• Carefully go over forms and paperwork.• Answer questions.• Avoid “they never told me that”.

Recordkeeping

• Written records provide the best defense.

• Proper forms and contracts.

• Helps to avoid risk, mistakes, and potential litigation.

Customer Satisfaction

• A satisfied customer, even when mistakes have been made, will rarely resort to litigation.

• Attorneys may encourage the FH to do “whatever it takes”.

• Obtain a written release.

Insurance for Risk

• Proper insurance will not generally avoid mistakes being made but it will provide protection and a sense of security.

• Consult a qualified insurance professional.• Require proof of insurance from

subcontractors.

• Risk management and litigation avoidance is an ongoing issue.

• Just as continual upgrading of practices and facilities is important to provide the highest level of service, an ongoing awareness of risk management and litigation avoidance is critical.

Factors that Minimize Risk

• awareness of heightened obligation• proper training and supervision• proper and complete disclosure• communication• proper recordkeeping• procurement of insurance• satisfying the customer’s needs