Times have changed. Nothing is the same, absolutely nothing. There was a time in funeral service when the world was pretty set, pretty solid, and pretty secure and pretty simple. No more. Times have changed and the changes in funeral service have, as with all change, been both a blessing and a curse.
One of the curses of operating any type of enterprise today is the glaring, ever present potential of litigation, and frankly anybody, absolutely anybody who doubts this, denies thing, ignores this or even argues with this is living in another time and place, they are kicking dinosaurs so to speak.
Here are some examples of kicking dinosaurs in the funeral service profession. Let’s see: “I know what my families want.” “My families love me.” “That stuff only happens in the big cities, not here.” “Why would anybody want to sue me?”
Yes to be sure you probably know exactly and precisely what the families want, and yes to be sure every family you have ever served probably worships you, and yes there is a big difference at times between big city funeral service and funeral service in say Tiny Rock, Iowa. But concerning the question why would anybody want to sue me, that answer is easy and quick – MONEY.
No one in any enterprise is beyond being sued. No one, let that one fact be understood, and while most every attorney I have ever worked with are fair reasonable human beings, there are some that are not, and they might well be working in your town or they are brought to your town from outside. While most every family I have ever worked with are fair reasonable human beings, there are some who were not reasonable and fair in any stretch of the imagination, and so we hearken the old English law precept of “caveat venitor” which means “let the seller beware.” In funeral service we, not the consumer need to beware. It is not just let the buyer beware these days its let everybody concerned beware.
Let us make no mistake, the risk of doing a funeral, any aspect of a funeral has increased in tandem with the risks of just being in any type of business enterprise. Sad but true.
So let’s dive into the specific issue of the wisdom, and that is the word, the wisdom, of using embalming report forms.
Friends just look at Google and type in the words “negligent embalming cases” and if any doubting Thomas’s are out there in the funeral word probably a quick conversion in affirming the wisdom of using embalming report forms will happen.
The arguments against using embalming report forms in the year 2010 really remind me of the arguments that many funeral directors made thirty years ago about staying in the ambulance service. In the end getting out of the ambulance service was absolutely the right thing to do, look at who, if any, is still in the ambulance business? Today starting to use embalming report forms is absolutely the right thing to do.
Thirty years ago the final question was this concerning ambulance service “Do I risk losing the entire funeral home over a lousy $25.00 ambulance call, for which I will never get paid?” The answer was a resounding NO, and thousands upon thousands of funeral directors dumped the ambulance service.
Today the question ought to be on every funeral directors lip “Do I risk losing the entire funeral home by NOT using a lousy 3 cent embalming report form?” The answer ought to be a resounding NO. I personally believe the State Board of Funeral Directors and Embalmers across this country should make it a state requirement to obtain a establishment license that the embalming report form is mandatory and used on each and every case, whether embalming takes place or not.
Embalming report forms are easy to fill out. They offer a paper trail, and the only people that I have encountered after 42 years in funeral service who don’t want a paper trail are the people who don’t want their professional activities documented. Now there is an interesting, haunting and sobering thought.
The argument that we are already piled up with paperwork just does not work in 2010. Paper work is just part of business, and as far as I can see it is never going to end (at least in my lifetime). I get humored when I run into funeral directors who still resent the requirements of the Federal Trade Commission’s Funeral Rule. That is a sad state of affairs. The FTC requirements which included mandatory paperwork became the law of the land on April 30, 1984. That is today over a quarter of a century ago and still we have seminars on the subject, and still we have colleagues who detest the Rule.
If a funeral director is biased against the paperwork of the Federal government, or the State government, or the local government or even the internal management paperwork of the funeral home, I believe this is a mistake in management with a capital “M”.
There was a time in the 1880’s when undertakers actually pitched a fit over being required to completed death certificates, but who survived in funeral service who did not comply with that new change?
I have been involved in many law suits serving as an expert witness which have been brought against funeral homes concerning the contemporary litigation subject of negligent embalming. Here is the truth – the only funeral homes that had a chance in Hades of winning were exclusively the funeral homes that could produce a completed and well documented embalming report form. This is true in every instance that I have been involved with.
The opposite however is also true. The funeral home who had nothing in writing, no report, or worse a poorly completed report ended up being at the mercy of the opposing attorney and the courts have a pretty consistent history of siding with grieving, bereaved, weeping, and mourning families – whether in reality they are that tore up or not.
To be sure funeral home management is more complicated today than ever before in our history. We have to cope and survive a myriad of agencies and outsider’s looking in at us. Let’s see, we cope with the State Board of Funeral Directors, the Federal Trade Commission, Occupational Safety and Health Administration, Americans With Disabilities Act, the IRS, the State Dept. of Revenue, the Department of Transportation, Wage and Hour, Truth in Advertising, well the list goes on and on – so really in this already bureaucratic environment of daily business a simple embalming report form which takes an embalmer about 3 minutes to complete pales in comparison with what is today a normal amount of paper work in every funeral home in the United States.
I remember very well one funeral director (a buddy of mine) who was very full of himself and announced at a state board meeting that embalming report forms were nonsense, he didn’t believe in them, he refused to use them, he hated them, and in his expert opinion only neurotic funeral directors would fall for such silliness. He knew his families, no one would ever dare to sue him, people loved him, he never made a mistake, and his firm handled was way, way beyond the minor pesky issue of legal litigation.
He strutted out of the meeting, mighty pleased and impressed with himself. He presented himself that day as the voice of god, and because he was a buddy of mine, I felt embarrassed for him.
However in a couple of years I had been engaged as an expert witness for this very funeral director, because unbelievably one of “his” personal friends, one of “his” fan club members was suing him for negligent embalming. Doesn’t matter if the body looked wonderful or not, he was getting sued.
His behavior in the courtroom was considerably different than his behavior at the state board meeting. He was just stunned. This was Iowa he told me nobody ever sued anybody in Iowa (of course that was not true). People were nice in Iowa, they were mostly farmers, mostly church going people, mostly hardworking people, by and large wonderful people, and they were as he reminded me “his” people.
That was all mostly true about Iowa people, but the people suing him were not from Iowa, they were not particularly nice, they were not farmers, they were not church going people, they were not hardworking, they were not wonderful people and they certainly were not “his” people, they didn’t like this funeral director at all, they were suing him, and their antagonism towards him was abundantly evident at the hearing and trial.
When his attorney called to ask me to help out the first question I had was this, “Can you send me the embalming report form as soon as possible?” The attorney responded, “He doesn’t have one.” Gee whiz, surprises of surprises, this funeral director who detested embalming report forms didn’t have one – well at least I could compliment him on his consistency. He didn’t like forms, and he, by god, didn’t use any, so there!
I have found two words in the English language that has caused a bunch of nice people a bunch of avoidable problems and here are the two haunting words “TOO LATE.” The words “too late” has created more avoidable problems that anything else I can think of in my career and life, and certainly this buddy of mine was “too late” concerning the easy issue of filling out simple embalming report forms.
In the end this funeral director arrived at a cash settlement with this family and the settlement was not chicken feed, it hurt his pocket book as well as hurting his reputation with “his” people. The gossips had a field day.
Interestingly this funeral director we are discussing starting using embalming report forms. He discovered that is was wise, sensible and mature to do so. The reports just helped him sleep better at night.
I personally would rather use an embalming report form to help me sleep than worry about the risky possibilities in not using them. Embalming reports are simple, easy to fill out and easily had and they are worth ten valium. Times have changed, and I always remember a wise person once told me that the opposite of courage is not coward-ness, it is conformity, and it is staying locked to protecting how things were always done, instead of honestly looking at things as they are and how they are changing.