Burgess v. Perdue

Citations: 721 P.2d 239; 239 Kan. 473; 1986 Kan. LEXIS 351Docket: 58,822

Court: Supreme Court of Kansas; June 13, 1986; Kansas; State Supreme Court

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Mary A. Burgess, the plaintiff and mother of deceased Stephen D. Bloomer, appeals a summary judgment from the Shawnee County District Court favoring defendants W. Lang Perdue, II, M.D., and the State of Kansas. The court ruled that Burgess failed to establish a cause of action for outrage against the State and that negligent infliction of emotional distress regarding interference with a dead body is not recognized in Kansas law. Stephen, a resident of Kansas Neurological Institute (KNI) since 1970, died on July 17, 1983, while being treated by Dr. Perdue due to complications from pneumonia. After Stephen's death, Burgess expressed her desire against an autopsy; however, Dr. Perdue informed her that an autopsy would proceed regardless of her wishes. He later miscommunicated her consent for a limited autopsy to the county coroner, resulting in a full autopsy and the removal of Stephen's brain, which was sent to KNI without proper authorization. Upon discovery of the brain, Dr. Heeb from KNI informed Burgess, leading to the exhumation and reburial of Stephen's body, incurring costs of $1,199.52. Burgess initiated legal action on November 17, 1983, seeking damages for the actions of both Dr. Perdue and the State of Kansas.

Both defendants in the case submitted motions for summary judgment, which the district court granted. The court ruled on September 20, 1985, that Dr. Heeb's action of informing the plaintiff that her son's brain was held by KNI did not constitute outrageous conduct. Additionally, the court accepted defendant Perdue's motion, determining that a claim for negligent infliction of emotional distress regarding interference with a dead body cannot be made against someone not directly responsible for mishandling the remains. The plaintiff is appealing both decisions, arguing that Dr. Heeb's communication was indeed outrageous. The legal standard for the tort of outrage, as established in Dawson v. Associates Financial Services Co., requires proof of four elements: intentional or reckless conduct by the defendant, extreme and outrageous behavior, a causal link to the plaintiff's emotional distress, and that the distress is severe. The court must first assess whether the defendant's actions can be deemed extreme and the emotional distress sufficiently severe to warrant legal intervention. If reasonable factfinders could disagree on these points, the matter must go to a jury. The court has historically found no outrageous conduct in similar cases, citing various precedents to illustrate the threshold for such claims, including instances of improper communication regarding a deceased relative.

Liability for emotional distress requires actions that exceed societal tolerances and are likely to cause serious mental harm. Previous case law illustrates such extremes, including instances of deception and threats that resulted in severe distress. In the current case, the plaintiff is not suing the State for the treatment of her son’s body but rather for the doctor’s notification about the brain being at KNI. Although the notification was shocking, it was not deemed outrageous or intolerable by community standards. The doctor’s intention was to respect the mother’s wishes regarding the autopsy and to address any potential impropriety, lacking malice or harassment. The trial court ruled that the doctor's actions did not meet the threshold for State liability.

Additionally, the plaintiff argues that the doctor's negligence led to emotional distress upon learning of the brain removal, despite her request for a limited autopsy. The court found no bodily injury linked to this negligence and stated that emotional distress claims typically require physical harm. The plaintiff contends that emotional distress should be recognized without physical injury when related to the mishandling of a corpse. However, the court noted that the doctor could only be liable for negligent infliction of emotional distress if he personally mishandled the body, which he did not. Citing the Restatement (Second) of Torts, the court emphasized that liability for interference with a dead body applies only to those who directly engage with the body, thus ruling out the doctor’s responsibility in this case.

One entitled to control the disposition of a deceased person's body can pursue a tort claim against anyone who intentionally, recklessly, or negligently mistreats the body or obstructs its burial or cremation. This cause of action is based on the interference with the right to control the body, often referred to as a 'property' or 'quasi-property' right, even though the body cannot be sold or transferred and serves only the purpose of interment or cremation. Practically, this right underpins claims for mental distress experienced by survivors, with no requirement to demonstrate physical harm from the distress.

Jurisdictions have recognized this cause of action in various cases, including Darcy v. Presbyterian Hospital, where a hospital performed an autopsy against the mother's explicit wishes, and French v. Ochsner Clinic, where a hospital was liable for performing an unauthorized autopsy. Additionally, Torres v. State of New York involved a state hospital conducting an autopsy without the spouse's knowledge or consent, leading to liability due to inadequate attempts to contact the spouse. Aetna Life Insurance Co. v. Burton also involved an unauthorized autopsy performed by an insurance company.

Kansas law acknowledges a cause of action for negligent infliction of emotional distress when physical injury is present, but has made exceptions for intentional mishandling of corpses. In Alderman v. Ford, the court affirmed a widow's right to her husband's body in its original condition and allowed her to seek damages for mental suffering due to an unauthorized autopsy. Similarly, in Hamilton v. Individual Mausoleum Co., the court recognized the children's right to sue for the wrongful disturbance of their mother's remains during a vault transfer, emphasizing their legal entitlement to the body. In Alderman, the widow's right to recover was founded on her legal entitlement to her husband’s body, independent of any negligence.

In the case at hand, the plaintiffs did not claim negligence but instead accused the mausoleum company and its employees of willful and malicious actions regarding the disturbance of a body. The coroner removed the decedent's brain based on incorrect information from Dr. Perdue, who misrepresented the plaintiff's consent for only a limited autopsy. By seeking consent for a full autopsy, Dr. Perdue assumed a duty of care towards the plaintiff, which he breached by failing to communicate the limitations of consent, thus misleading the plaintiff and inhibiting her ability to intervene.

Although Dr. Perdue did not perform the autopsy himself, his negligence in failing to inform the coroner of the mother's request led to the coroner acting under his authority. The trial court's view that only those who directly handle a body can be held liable is too restrictive. It is noted that entities like hospitals and medical schools can still be implicated if they authorize such actions, even without direct involvement.

The discussion raises the question of whether to adopt the Restatement (Second) of Torts, which allows for liability for negligent interference with a corpse, unlike the prior version that required intentional or wanton acts. This newer position reflects a minority view, contrasting with the majority rule, which necessitates intentional or malicious interference to establish liability for emotional distress linked to the mishandling of a body.

The district court appropriately granted summary judgment in favor of Dr. Perdue, concluding he did not owe a duty to obtain the plaintiff's consent for an autopsy. However, by seeking consent where it was unnecessary, he voluntarily assumed a duty to communicate the limitations of that consent. The court referenced legal principles stating that if a party undertakes to provide a service, they are liable if their negligence increases risk or leads to harm due to reliance on that undertaking. Generally, liability arises when a defendant worsens a situation, misleads the plaintiff, or deprives them of assistance. Some cases have ruled that liability exists even when the plaintiff is not made worse off, indicating a broader obligation of reasonable care in certain contexts.

Dr. Perdue voluntarily assumed the responsibility of informing the coroner about the need for a partial autopsy but failed to fulfill this obligation, leading to his liability for the costs associated with exhuming and reburying the body. The district court ruled in favor of the plaintiff, awarding $1,199.52 plus court costs. Mrs. Burgess was misled regarding the autopsy status and could have intervened to prevent the brain autopsy had she known Dr. Perdue had not completed his task. Although Dr. Perdue did not directly manage the body during the autopsy, he provided the coroner with apparent authority to conduct a full autopsy. He did not gain any benefit from the autopsy but had accepted the responsibility to communicate the mother's wishes. The trial court concluded that Dr. Perdue's actions created the circumstances leading to the plaintiff's injury, affirming that he owed a duty of care once he began the performance of this duty. The judgment is upheld, with Justice Prager not participating.