PERSONAL INJURY CORNER
THE MUDDLED LAW ON DISPOSAL OF HUMAN REMAINS
TED BABBITT
Florida still follows the impact rule which bars a claim for emotional distress where no physical impact occurs but that law has been the subject of numerous exceptions . In Rowell v . Holt , 850 So . 2d 474 ( Fla . 2003 ), the Florida Supreme Court recognized that the impact rule “ is not … an inflexible , unyielding rule of law , so sacred that it must be blindly followed without regard to context ”. At 478 . In Gonzalez v . Metropolitan Dade County Public Health Trust , 651 So . 2d 673 ( Fla . 1995 ), the Supreme Court carved out an exception to the impact rule with regard to the mishandling of a dead body . In that case , the plaintiff ’ s baby died about a week after child birth and two months after the baby ’ s funeral service , the funeral home notified the parents of the baby that the baby ’ s body was still in a refrigerated drawer in the hospital morgue so that a second funeral and burial had to be held . Despite the lack of impact , plaintiff ’ s suit for tortious interference with a dead body and negligent infliction of emotional distress was upheld .
In the strikingly similar case of Williams v . Boyd-Panciera Family Funeral , 293 So . 3d 499 ( Fla . 4th DCA 2020 ), a funeral home lost the cremated remains of the plaintiff ’ s miscarried baby and based upon the lack of physical impact , the suit against the funeral home by the child ’ s parents was the subject of the granting of a summary judgment despite evidence that the employees of the funeral home did not follow the funeral home ’ s protocol for tracking intake of cremated remains after they were returned to the funeral home resulting in their loss . Despite recognizing the holding in Gonzalez , supra , the Fourth District affirmed the granting of the summary judgment holding :
“ While Gonzalez involved the mishandling of human remains , the court ' s holding appears broad enough to encompass an action for negligence based on a funeral home ' s actual loss of remains . The facts of this case are undoubtedly troubling and heartrending . But it appears that without an impact or conduct that goes beyond mere negligence , Florida law as it now stands does not allow for recovery for emotional distress under the facts of this case .”
The only way to reconcile Gonzalez , supra , with Williams , supra , is to assume that losing a dead baby ’ s body for several months is more egregious than permanently losing a similar baby ’ s remains .
Adding to the confusion of what the law is with respect to the handling of dead bodies is the case of Winter Haven Hospital v . Lyles , 148 So . 3d 507 ( Fla . 2d DCA 2014 ). In that case , the mother of the plaintiff died in the hospital and an autopsy was requested . The family was dissatisfied with the conclusion of the autopsy and inquired about a second autopsy only to find that the internal organs of the decedent had been cremated and mixed with undifferentiated hospital waste and deposited in a landfill . The incineration of the decedent ’ s internal organs had been done without express consent and the plaintiff testified that she specifically informed hospital employees of her desire that her mother ’ s remains not be incinerated . A jury found against both the pathologist and the hospital and concluded that their conduct constituted extreme and outrageous conduct consistent with the tort of outrage . Outrage is an exception to the impact rule . The resulting verdict found one million dollars in compensatory damages and one million dollars in punitive damages .
The first issue was whether the plaintiff failed to comply with the medical malpractice presuit screening statute , and the appellate court concluded that such a compliance was not required because disposal of remains did not constitute a rendering of medical care or services . Nor did such disposal result in either injury or death as defined in the medical malpractice presuit screening statute .
There was conflicting evidence as to whether internal organs are normally disposed of as hazardous waste or returned to the funeral home to be buried with the body . Various experts testified both ways . The Second District concluded that there was sufficient evidence to support the jury ’ s finding of outrage against the hospital who was responsible for the pathologist who had done the autopsy . The court concluded that mishandling of a dead body or , in this case , a portion of a dead body , is sufficiently troubling to lower the bar as to what causes outrageous conduct . Citing Williams v . City of Minneola , 575 So . 2d 683 , 691 ( Fla . 5th DCA 1991 ), the court concluded :
“ As for what is outrageous or reckless and what is not , we emphasize that our society , as reflected for example in decisions of the courts of Florida cited earlier in this opinion , shows a particular solicitude for the emotional vulnerability of survivors regarding improper behavior toward the dead body of a loved one , and the special deference paid by courts to family feelings where rights involving dead bodies are concerned is central to our decision . This area is unique , and once it is entered , behavior which in other circumstances might be merely insulting , frivolous , or careless becomes indecent , outrageous and intolerable .”
On other grounds , the court concluded that a retrial was necessary on the issue of punitive damages but upheld the potential for such a verdict on retrial .
Reconciling the opinions in the above cases is indeed difficult . The law of mishandling of dead bodies seems to be very fact specific and not easily correlated .
The author wishes to thank Bard D . Rockenbach of the firm of Burlington & Rockenbach for pointing out the necessity for review of these cases and for assistance in their analysis .
PBCBA BAR BULLETIN 16