To see the entire article, click the link: http://sheehyware.com/files/54/
Cremation Litigation Prevention and Preparation: How to Keep from Getting Sued and What to Do If You Do
Throughout my years in advising cremation, funeral and cemetery clients, the one factor that has created, and caused, more lawsuits than any other is documentation. The absence of – or presence of incomplete or improperly completed – documentation, is a main factor for a potential plaintiff in deciding whether a lawsuit should be filed.
Think about it: To a vast majority of the families we serve, the cremation process is a scary and unfamiliar undertaking which they do not understand. Families are typically not present during the cremation process and the only assurances they have that we performed our jobs properly are our word and the documentation we create during the process. If a problem arises, the only thing we have to objectively show our actions were professional and appropriate is our documentation. Being able to provide objective documentation that was created at the time of the cremation goes a long way in reassuring a concerned family member that everything was done professionally should an issue arise. Additionally, aside from the content, thorough and meticulously maintained documentation provides a level of comfort to a family that the facility is run in a professional and businesslike manner.
With that said, here is my top 10 list of important factors you must consider when reviewing your processes and documentation produced from the cremation process:
1. Have a good set of forms that you use the same way every single time.
Consistency is vital. If you get sued, a plaintiff will want to see that you followed your procedures and completed your documentation the same way every time. In most cases, a court will give a plaintiff access to your files beyond the case at issue. They are looking for inconsistencies, problems, or patterns of sloppy or incomplete paperwork that would demonstrate that your facility acted improperly in their case.
2. Make sure your documentation covers the essential elements needed for your process including, but not limited to: identification, authorization, custody and control of remains.
This will vary from state to state, but these elements, at a minimum, should all be present.
3. If you are not the servicing funeral home, make sure the documentation you have reflecting your role in the process properly and completely defines your facility’s duties and responsibilities in the process.
One excellent idea is to include an indemnification agreement in your contracts with third-party businesses. Indemnification agreements spell out the rights and responsibilities of you and the other business you are working with and can protect you should you get sued when another facility fails to properly execute their element of serving a family.
4. Never, ever, ever cut corners on executing paperwork.
This is essential. Failure to complete a document, executing the same document differently each time (because remember, a court will grant a plaintiff the opportunity to review more than just the case at issue), or even a single variation on a single case will give a family with concerns about the process fuel for their fire, whether justified or not.
5. If you make a mistake, start over or document how, where and when you made the mistake (and have it witnessed if necessary).
This is always a difficult element to explain. Mistakes happen. We are human. What do we do if we accidentally write in the wrong contract number or name on a contract? Well, unfortunately, there is no answer that applies in every case, every time. If you make a mistake in starting a new form, it would be advisable to start a brand new form and completely destroy and dispose of the form on which the error was made. (Don’t let an old, error-laden form stick around!).
If you are executing a form that has been transferred to you or has information on it that cannot be recreated (for example, a pre-cremation rubbing of a disk or tag) you need to do something to make it clear what happened and why a change was made or an error corrected.
The key to this is to ask yourself, “Would someone who had no knowledge of this case be able to look at the documentation a year from now and be able to determine, clearly and unequivocally, what happened?” If you cannot confirm someone would be able to do this, you need to make it clearer. Having a supervisor or other third party sign off confirming the changes you made or errors you corrected is always a good idea when it is possible.
6. Have a foolproof system for making sure that documentation is checked and double-checked.
Double checking or blind checking of forms and the presence of such essential elements such as authorization and identification are always a good idea, but not always feasible depending on the staffing of your location.
7. Make sure all employees who come in contact with the documentation are fully trained in using and executing the paperwork.
Processes and documentation are worthless tolls if the people in whose hands they are placed don’t know how to use them. Regular training and review sessions are highly recommended.
8. Have an established system of maintaining and preserving documentation.
Going through all the hassle of creating and properly executing documentation is all for naught if it is not preserved and available when the time comes to prove that you acted properly.
9. If there is a problem, make sure all documentation is isolated and preserved.
Failure to properly maintain documentation after an issue has been raised or claim has been made can result in you automatically losing a lawsuit. Yes, that’s right, a court can automatically enter judgment in favor of a plaintiff if you do not properly maintain or preserve documents once you are aware of potential litigation without ever considering the facts of the case.
10. Periodically review your documentation and processes for gaps or inconsistencies, and most importantly, to ensure that the processes are being followed and the documentation completed properly.
There is no “perfect system”, and as business processes and laws change, so should your documentation. Review it (or have it reviewed by a third party) regularly to ensure you are staying on top of the needs and requirements of the process.
While nothing can completely prevent you from being sued, following these general rules of thumb can go far in keeping you out of the courtroom. If you need any help in reviewing your processes, procedures or documentation, please do not hesitate to contact me.
Chris Farmer is CANA’s General Counsel and Of Counsel to Sheehy, Ware & Pappas, P.C. and is a founding member of its cremation, funeral and cemetery practice group, one of the most experienced and respected collection of attorneys practicing Death Care Law in the nation. Farmer has represented hundreds of small and large funeral home, cemetery and cremation clients throughout North America in matters involving regulatory compliance, licensure compliance, professional negligence, employment, and business torts from the initial claim through litigation and appeals. Farmer is also a member of the firm’s labor and employment, commercial litigation and general litigation sections.