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Winter Haven Hospital, Inc. v. Brandy K. Liles, Case No. 2D13-807 (2nd DCA)

In Liles, the Second District reversed a final judgment entered in favor of the plaintiff. The plaintiff's mother passed away one day following treatment at the Winter Haven Hospital's emergency room. The plaintiff requested an autopsy be performed and signed the hospital's autopsy permission form. An outside doctor performed the autopsy. The plaintiff did not agree with the cause of death as determined by that doctor, and asked about a second autopsy at the funeral home that was handling her mother's burial. The plaintiff was told that her mother's organs had not been returned to the funeral home after the autopsy. The plaintiff learned from the hospital that her mother's organs had been incinerated. The plaintiff sued the hospital, the doctor who performed the autopsy and that doctor's physicians group, alleging separate counts for outrage and conspiracy. At trial, the jury found that the doctor, his group and the hospital engaged in extreme and outrageous conduct that was a legal cause of severe emotional distress, but found for the defendants on the conspiracy claim. The jury awarded compensatory and punitive damages. The plaintiff later settled with the doctor and his group. The hospital appealed.

The hospital argued that the trial court erred in failing to treat the case as a medical malpractice case subject to the provisions of chapter 766. The Second DCA disagreed. Section 766.106 defines a claim for medical negligence or medical malpractice as a claim, arising out of the rendering of, or the failure to render, medical care or services. In addition, the medical negligence or malpractice must have resulted in personal injury or death to the claimant. The Second DCA found that the autopsy performed by the defendant doctor did not constitute the rendering of medical care or services. The Second DCA additionally noted that while an autopsy requires the exercise of medical skill and judgment, the plaintiff's claim is based on the disposal of her mother's organs, which does not require medical skill and judgment. Further, the Liles court noted that the plaintiff sought compensation for damages she suffered as a result of the incineration of her mother's organs, not for any injury or death suffered by her mother, the patient. Therefore, the trial court correctly determined that the case was not a case of medical malpractice.

The hospital next argued that the trial court erred in instructing the jury that a cremation may not be performed until a legally authorized person gives written authorization for such cremation. This language came from Fla. Stat. 470.0255, which addresses the arrangement, authorization and time requirements for cremations. The hospital asserted that the instruction did not apply because the organs removed from the body are biomedical waste that is excluded from the cremation statutes. Cremation is defined as "any mechanical or thermal process whereby a dead human body is reduced to ashes and bone fragments. Cremation also includes any other mechanical or thermal process whereby human remains are pulverized, burned, recremated, or otherwise further reduced in size or quantity." Humans remains "means the body of a deceased human person for which a death certificate . . . is required . . . and includes the body in any stage of decomposition and the residue of cremated human bodies." The defendants argued that the organs were disposed of and incinerated as biomedical or biohazadous waste. Biomedical waste is "any solid or liquid waste which may present a threat of infection to humans." It includes nonliquid human tissue and body parts. The trial court agreed with the hospital that the trial court erred in applying the law regarding cremation because the organs do not constitute a "dead human body" or "human remains" as set forth in the cremation statutes. The organs constituted medical waste.

The hospital also argued that the plaintiff failed to demonstrate the elements of the tort of outrage -- intentional infliction of emotional distress. The elements of that tort are: (1) the wrongdoer's conduct was intentional or reckless, that is, he intended his behavior when he knew or should have known that emotional distress would likely result; (2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community; (3) the conduct caused emotional distress; and (4) the emotional distress was severe. The Second DCA found that the plaintiff did not present evidence to support the finding of outrage against the hospital vicariously for the actions of the doctor. The doctor never spoke to the plaintiff and was unaware of her wishes. The Second DCA however found that there was sufficient evidence to support a finding of outrage against the hospital for its own actions. Among other things, the plaintiff informed the hospital that she did not want her mother cremated, and the hospital's policy was to incinerate organs that have been placed in red biohazard bags after an autopsy.

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