DECISION BY OHIO BOARD
GREATLY INCREASES CREMATION LIABILITY
FOR FUNERAL HOMES
By: T. Scott Gilligan, OFDA General Counsel
Section 4717.24(A)(17) of the Ohio Revised Code provides that if a funeral director signs the cremation authorization form as a witness, the funeral director “shall certify that the dead human body delivered to the crematory facility is that of the decedent identified on the authorization form.” Does that statute mean that a funeral director who witnesses a cremation authorization form must undertake those steps that a reasonable and prudent funeral director would under the circumstances to confirm the identity of the decedent prior to cremation? Or does the statute mean that if a funeral director witnesses a cremation authorization form that he or she is the absolute guarantor that the body being cremated is the person listed on the cremation authorization form? Put differently, does the statute make the funeral director liable if there is any misidentification of the decedent regardless of how it occurred or whose fault it is?
Unfortunately, in a baffling decision, the Ohio Board of Embalmers and Funeral Directors (the “Board”) decided to make a funeral director who witnesses a cremation authorization form the absolute guarantor of the identity of the cremated body. Since nothing in this life can ever be 100% certain, especially when the body cannot be in the custody of the funeral director 24/7 prior to cremation, OFDA is strongly advising funeral directors to NEVER WITNESS A CREMATION AUTHORIZATION FORM until OFDA can try to overturn this ruling by changing the statute.
As background to the ruling, the case before the Board involved the Marlan Gary Funeral Home of Columbus. The funeral home was contacted to cremate the remains of an infant. The infant was at the Franklin County Coroner’s Office for an autopsy and the parents requested an immediate cremation so that they could obtain the cremated remains for a scheduled memorial service. The funeral home sent a livery company to pick up the infant from the coroner’s office and transport the remains directly to a crematory. An employee of the coroner’s office presented to the livery company a body bag containing a different infant. Neither the coroner’s employee nor the livery company representative checked the identification tags. When the coroner’s office discovered the mix up two days later, everyone realized that the wrong body had been cremated. The funeral home was sued by the family and a complaint was brought against Marlan Gary and his funeral home by the Board since he had witnessed the cremation authorization form, but failed to identify the body prior to cremation.
The funeral home defended against the Board’s complaint by claiming that a funeral director who witnesses a cremation authorization form should be able to rely upon an identification made by the coroner. The Board’s Hearing Officer found against the funeral director and the funeral home and decided that Section 4717.24(A)(17) imposes upon a funeral director who witnesses a cremation authorization form the following obligations:
“. . . to absolutely ensure as much as possible that the correct body is being cremated.”
“. . . every precaution and safeguard must be taken to ensure accuracy.”
“I believe 4717.24(A)(17) requires the funeral director to take some affirmative step to verify and confirm that the body delivered to the crematory is the person named on the Cremation Authorization form.”
“Mr. Gary clearly cannot delegate his duty to certify the identity of the body to Mr. Snodgrass (livery company employee). The statute imposes the duty on the funeral director.”
“. . . the funeral director simply cannot rely on another, be it a driver or a coroner, to get it right. Again, R.C. 4717.24(A)(17) imposes the duty on the funeral director to certify (or ensure) that the correct body is being cremated.”
In his discussion, the Hearing Officer opined that in some cases, the funeral home may have to resort to DNA testing to prove identification. Since the Hearing Officer found a funeral home may not rely upon a coroner, this places a funeral home in no man’s land in cases of traumatic death or decomposition. Does the funeral home have to pay for its own DNA testing before cremation? According to the Hearing Officer, the answer would be “yes.”
The Hearing Officer’s interpretation of the statute is only a recommendation to the Board. Although the Board had the discretion to overturn or at least clarify the Hearing Officer’s interpretation of what Section 4717.24(A)(17) requires, it chose to simply rubber stamp the Hearing Officer’s findings.
While the decision greatly increases liability for all Ohio funeral homes, for Mr. Gary it may mean the end of his funeral home business. Not only did the Board ratify the Hearing Officer’s interpretation of the law, it also confirmed his recommended penalty of a six-month suspension for both Mr. Gary’s funeral director’s license and funeral home’s license. As a small, one facility operation, the six-month suspension will drive him out of business. Therefore, a mistake by a coroner and a livery service employee, coupled with the Board’s decision, has cost a funeral director his business.
What should Ohio funeral homes do to protect themselves until the law can be changed? As stated above, do not have a licensee witness the cremation authorization form. The wording of the statute imposes liability on the funeral director, but only if he or she witnesses the cremation authorization form. While the law does require that the signature of the authorizing agent on the cremation authorization form be witnessed, it specifically provides that the witness may be a funeral director “or another individual.” Therefore, use a family member or a non-licensed employee of the funeral home to witness the cremation authorization form. Under no circumstances should a licensed funeral director serve as the witness.
OFDA will seek to change this unfortunate ruling through a bill that will be introduced in the Ohio legislature this fall. However, even if OFDA is successful in pushing a bill through the legislature, any change would not take effect until later next year at the earliest. Therefore, licensed funeral directors should not witness cremation authorization forms for the foreseeable future until the law has been changed.
OFDA members with questions regarding this matter may contact Scott Gilligan at (513) 871-6332.