Transcript Protecting Your Business From Prep Room Related Lawsuits Melissa Johnson Williams, CFSP

Protecting Your Business From
Prep Room Related Lawsuits
Melissa Johnson Williams, CFSP
Executive Director, American Society of
Embalmers
April 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.
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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 Director
August 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
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awareness of heightened obligation
proper training and supervision
proper and complete disclosure
communication
proper recordkeeping
procurement of insurance
satisfying the customer’s needs