Winter Haven Hospital, Inc. v. Liles , 148 So. 3d 507 ( 2014 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
WINTER HAVEN HOSPITAL, INC., )
a Florida corporation, )
)
Appellant, )
)
v. ) Case No. 2D13-807
)
BRANDY K. LILES, )
)
Appellee. )
__________________________________ )
Opinion filed October 8, 2014.
Appeal from the Circuit Court for Polk
County; J. Dale Durrance, Judge.
Susan W. Fox of Fox & Loquasto, P.A.,
Orlando; G. Bruce Hill and Thomas
Schieffelin of Hill, Adams, Hall &
Schieffelin, P.A., Winter Park; and Daniel
A. Martinez and Inguna Varslavane-Callahan
of Martinez Denbo, LLC, St. Petersburg, for
Appellant.
Joel D. Eaton of Podhurst Orseck, P.A.,
Miami; and Weldon Earl Brennan of
Brennan, Holden & Kavouklis, P.A., Tampa,
for Appellee.
MORRIS, Judge.
Winter Haven Hospital, Inc. (the Hospital), appeals a final judgment
awarding Brandy Liles $500,000 in compensatory damages against the Hospital and
$1,000,000 in punitive damages against the Hospital. We reverse the final judgment
and remand for a new trial in accordance with this opinion.
I. Facts
Ms. Sutka, a forty-nine-year-old woman, was receiving treatment at the
Hospital's emergency room on March 26, 2005, for shortness of breath and abdominal
pain. Early in the morning on March 27, Ms. Sutka passed away. Ms. Sutka's
daughter, Brandy Liles, requested an autopsy to determine Ms. Sutka's cause of death.
Ms. Liles signed the Hospital's autopsy permission form, which provides as follows:
Permission is granted to the authorities of Winter Haven
Hospital, Inc., to perform a postmortem examination and to
retain such tissues and organs as may be deemed
necessary for further study on the remains of the above
named decedent. Due care will be taken on the part of the
hospital authorities to avoid mutilation or disfigurement of the
body.
Dr. Gordon, a partner in Ridge Pathology Consultants, performed the
autopsy, but when Ms. Liles received the report, she did not agree with the cause of
death as determined by Dr. Gordon. She inquired about a second autopsy at the
funeral home that was handling her mother's burial, but Ms. Liles was told that her
mother's internal organs had not been returned to the funeral home after the autopsy.
Ms. Liles contacted the Hospital and learned that her mother's organs had been
incinerated.
Ms. Liles filed a complaint against the Hospital, Dr. Gordon, and Ridge
Pathology, alleging separate counts of outrage against Dr. Gordon, Ridge Pathology,
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and the Hospital based on the disposal and incineration of Ms. Sutka's organs without
the express consent of Ms. Liles. She also alleged one count of conspiracy against Dr.
Gordon, Ridge Pathology, and the Hospital and separate counts of vicarious liability
against Ridge Pathology and the Hospital for the actions of Dr. Gordon. The Hospital
filed a motion to dismiss, arguing that Ms. Liles had failed to comply with the medical
malpractice statutes of chapter 766, Florida Statutes (2004). The trial court denied the
Hospital's motion to dismiss. The trial court subsequently granted Ms. Liles' motion to
add claims for punitive damages against Dr. Gordon, Ridge Pathology, and the
Hospital.
At trial, Dr. Gordon's video deposition was played for the jury. He had
been a private practicing pathologist at the Hospital for twenty-nine years. During this
time, his regular practice had been to dispose of the organs tested during the autopsy
by placing them in red biohazard bags, which are later collected and incinerated. He
had also worked at the University of Florida for four years, where they also disposed of
organs this way. Dr. Gordon received Ms. Sutka's medical chart and the autopsy
permission form signed by Ms. Liles, and he contacted Ms. Sutka's attending physician
to discuss the case with him; Dr. Gordon did not discuss the case with Ms. Sutka's
family, and he was not aware of any specific wishes of the family. Dr. Gordon stated
that the family had a right to request the return of Ms. Sutka's organs and that he would
have honored that request if he had received it. When the funeral home contacted him
for Ms. Sutka's organs, this was the first time in thirty-four years that a family had
requested the organs. He did not intend to hurt Ms. Liles when he disposed of Ms.
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Sutka's organs, and he did not believe he had done anything wrong or reckless in
disposing of the organs as he had been doing for over thirty years.
Two employees of the Hospital testified regarding the Hospital's autopsy
policy, which provides that "[h]istology staff will . . . call Environmental Services to meet
them in the morgue to pick up organs removed during the autopsy which have been
placed in red biohazard bags by the Pathologists. Environmental Services will transport
the organs to the incinerator for disposal." One of the employees testified that to her
knowledge, the policy of incinerating the removed organs was not made known to
families before the autopsies are conducted.
An environmental services employee of the Hospital testified that the red
biohazard bags are collected along with the other hospital waste and incinerated on site
along with the other waste. The ashes from the incinerator are then sent to a landfill.
A former nurse at the Hospital testified that she had Ms. Liles sign the
autopsy consent form at the direction of the attending physician. The nurse had Ms.
Liles read the form by herself and sign it; the nurse did not explain the form to Ms. Liles.
The nurse had no memory of any discussion she might have had with Ms. Liles.
Ms. Liles presented the testimony of Dr. Nelson, a pathologist and chief
medical examiner for Polk, Hardee, and Highlands Counties. He stated that his office
always returns internal organs to the body after conducting an autopsy. He usually
does not deal with consent forms for autopsies, but the form he uses informs the family
that organs may be retained and disposed of and that the family may object. If the
family wants to have the funeral before he is finished with the organs, the family
receives the body without the organs. He also testified regarding the disposal of
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biomedical waste and that it "is not proper for human materials to be mixed with
garbage or trash":
Those specimens, those materials from the body, are
handled differently. They are not mixed with the garbage or
with the trash. They are put in separate red biohazardous
waste bags, and they are incinerated by the hazardous
waste hauler. They're not taken to the landfill and dumped
with the garbage pickup that you have at the curb.
He believed that the consent form used by the Hospital was deficient because it did not
"spell out exactly what's going to take place after the autopsy, with various organs and
tissues." He conceded that the consent form in this case meets the requirement of
section 872.04, Florida Statutes (2004), which simply requires written consent and is the
only law applicable to private autopsies. Dr. Nelson also agreed that organs that have
been examined during an autopsy become biohazardous waste and that incineration of
such waste is the most common practice and is necessary for public health. Dr. Nelson
agreed that not all facilities put the organs back into the body. He also agreed that the
Florida Association of Medical Examiners guidelines provide that retained organs are
not customarily returned to the body for burial and should be treated as biomedical
waste.
Dr. Nelson stated that the lack of informed consent and the way the
Hospital disposed of Ms. Sutka's organs was outrageous. But he stated that Dr. Gordon
had performed the autopsy in a manner that was compliant with the applicable standard
of care, and he did not believe that Dr. Gordon performed the autopsy so as to inflict
emotional distress on Ms. Liles. He stated that mixing the internal remains with other
trash without consent of the family is mutilation of the body, but he agreed that blood is
often flushed down the sewer during embalming. Dr. Nelson believed that the attending
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physician is responsible for obtaining consent for an autopsy from the family; the
pathologist is not involved in that process.
The funeral director who received Ms. Sutka's body testified that Ms. Liles
was upset when she found out that a second autopsy could not be performed, not
because she could not give her mother a proper burial. He had received bodies from
the Hospital both with and without organs, but he had never received bodies without
organs from other hospitals.
Ms. Liles testified that after speaking with her mother's attending
physician, she requested an autopsy to learn why her mother died. When she signed
the consent form at the nurses' station, no one told her that her mother's organs would
not be returned to the body. If they had told her, she would not have signed the form.
She did inform several people that she did not want her mother cremated. Ms. Liles
had requested a second autopsy because she did not agree with Dr. Gordon's
conclusions regarding her mother's cause of death; she believed her mother was
perfectly healthy and did not die of natural causes. She was devastated when she
learned that the organs had been incinerated because she could not keep her promise
to her mother that her mother would not be cremated. She has not been able to find
peace due to her not being able to honor her mother's final wishes. She also testified
that she became even more upset when she learned the week before trial that her
mother's organs were "in a landfill somewhere, with no telling what else garbage I've
heard." She said that when she goes on her lunch break and sees the garbage can
marked "waste," she cannot eat because she thinks of where her mother is. She
conceded that her mother may have already been buried when she contacted the
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funeral home about a second autopsy. Ms. Liles admitted to being aware from the
consent form that her mother's organs could be retained for further study or research.
Ms. Liles also presented evidence that a sample autopsy consent form
promulgated by the College of American Pathologists (CAP) gives the next of kin the
right to object to the retention of organs and informs the next of kin that organs will be
disposed of as the pathologist or hospital determines or as required by law.
The Hospital presented the testimony of Dr. Davis, a pathologist and
professor at the University of Kentucky College of Medicine and a state medical
examiner for Kentucky. He testified that Dr. Gordon's handling of the organs as
biohazardous materials was "[a]bsolutely" appropriate and within accepted standards.
Organs removed during an autopsy are biohazardous and are ultimately incinerated as
medical waste. This was done at other hospitals where he has served and is the
standard procedure around the country. Dr. Davis did not believe that there was
anything reckless about the consent form used in this case; it is "reasonable" and
"better than some [he had] seen around the country." He had had only one family in
thirty-one years request that the organs be returned to the body. He testified that the
attending physician handles the autopsy issue with the family and that the pathologist
plays no role in that. Dr. Davis testified that the CAP consent form is offered as a
starting point and that the CAP "does not order pathologists how to do this." The CAP
consent form is not a policy of the CAP. Dr. Davis had been a member of the CAP
committee that created the sample CAP consent form. Over the Hospital's objection,
Dr. Davis was questioned regarding the cremation statute and the fact that Ms. Liles
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had not signed a written authorization for cremation, although he believed that
"cremation means the entirety of the body, with or without internal organs."
Dr. Gordon testified that during an autopsy, organs are dissected and the
field is "unavoidably tainted with mucous, bowel, blood, serum and urine and feces, or
traces of it." The autopsy creates a nonsterile field. After he has completed the
dissection and sampling of the organs, they are placed into red biohazard bags. The
bags are placed in coolers and later picked up for incineration. Upon his examination of
Ms. Sutka, he found pneumonia, bleeding in the lungs, acute and chronic kidney
infection, chronic tobacco use, enlarged heart and liver, and sleep apnea. Ms. Sutka
was 5'1'' tall and weighed 330 pounds. He listed the official cause of death as
"respiratory arrest, secondary to desquamative interstitial pnuemonia, with pulmonary
hemorrhage, possibly complicated by sleep apnea and morbid obesity, DIP, secondary
to smoking." Dr. Gordon admitted that after this incident, he now places all organs in a
red biohazard bag and places the bags with the body for shipment to the funeral home,
although Dr. Gordon believes that the safest practice is to dispose of the biohazardous
waste in the autopsy room so as to avoid the handling by multiple people of materials
that are potentially infected. He believes that an inherent part of the autopsy is the
incineration of internal organs as biohazardous waste and that even organs that are
retained for further study must be disposed of eventually.
Before Ms. Sutka's case, Dr. Gordon had not had a family request the
examined organs in all of the years he had been a practicing pathologist. He believed
that his disposal of the organs was "appropriate and within the standard of care" and
was in accordance with the way he was taught at the University of Florida.
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Dr. Gordon and Ridge Pathology Consultants presented the testimony of
Dr. Strickland, a pathologist at Bay Pines VA Healthcare System and an assistant
clinical professor of pathology at the University of South Florida College of Medicine.
Dr. Strickland believed that Dr. Gordon's autopsy of Ms. Sutka and his disposal of the
organs for incineration met the applicable standard of care and was not reckless or
outrageous. Dr. Gordon's handling of the organs was consistent with the way Dr.
Strickland would practice. Dr. Strickland had never had a family member inquire about
the organs removed as part of the autopsy process. In his experience in practice and in
teaching hospitals, the organs are retained and disposed of as medical waste by
incineration, which is the most common and cost-effective way of disposal. He believed
that this is in accordance with Florida law, which ensures that the waste is not a danger
to the public. The Hospital's consent form contains all the required elements and is
consistent with other forms he has seen; Dr. Strickland believed that disposal of the
organs is implicit in the form. Dr. Strickland admitted that the consent form he uses
gives the next of kin the right to object to retention of organs. Over the Hospital's
objection, Dr. Strickland was also asked about the cremation statute and the fact that
written authorization for cremation is required.
At the close of the evidence, the Hospital argued motions for directed
verdicts on the issues of outrage, punitive damages, and the vicarious liability of the
Hospital for Dr. Gordon's actions. The trial court denied the Hospital's motions.
The jury found that Dr. Gordon, Ridge Pathology, and the Hospital
engaged in "extreme and outrageous conduct [that] was a legal cause of severe
emotional distress" to Ms. Liles (the tort of outrage) but found in favor of Dr. Gordon,
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Ridge Pathology, and the Hospital on the conspiracy count. The jury also found that the
Hospital owed a duty to Ms. Liles for the acts of Dr. Gordon and that Dr. Gordon was
acting as an agent of the Hospital and in the scope of Dr. Gordon's authority. The jury
awarded compensatory damages for past severe emotional distress in the amount of
$1,000,000. The jury also found that punitive damages were warranted against the
Hospital in the amount of $1,000,000 and against Ridge Pathology in the amount of
$90,000 but that punitive damages were not warranted against Dr. Gordon.
After the jury verdict, Ms. Liles settled with Dr. Gordon and Ridge
Pathology and voluntarily dismissed her claims against Dr. Gordon and Ridge
Pathology with prejudice. The trial court entered a final judgment against the Hospital
and in favor of Ms. Liles for $500,000 in compensatory damages and for $1,000,000 in
punitive damages. The Hospital now appeals.
II. Analysis
A. Medical malpractice
The Hospital first argues that the trial court erred in failing to treat this
case as a medical malpractice case subject to the provisions of chapter 766. We
disagree.
Section 766.106(1)(a), Florida Statutes (2004), defines a "[c]laim for
medical negligence" or "claim for 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.
§ 766.104(1) ("No action shall be filed for personal injury or wrongful death arising out of
medical negligence . . . unless . . . there are grounds for a good faith belief that there
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has been negligence in the care or treatment of the claimant."). The autopsy performed
by Dr. Gordon did not constitute the rendering of medical care or services. And while
an autopsy requires the exercise of medical skill and judgment, Ms. Liles' claim is based
on the disposal of her mother's organs, which does not require medical skill and
judgment. See Bell v. Indian River Mem'l Hosp., 778 So. 2d 1030, 1034 (Fla. 4th DCA
2001) (holding that parents' claims of outrage and negligent handling of a body were not
subject to the medical malpractice statutes because "hospital personnel did not engage
in any medical skill or judgment in the disposition of the child's remains"); Liles v. P.I.A.
Medfield, Inc., 681 So. 2d 711, 712 (Fla. 2d DCA 1995) (holding that plaintiff's claim that
medical providers did not comply with Baker Act was not subject to medical malpractice
statutes; "[a]lthough a medical diagnosis is necessary in order to involuntarily commit a
patient, the process of complying with the statute does not require medical skill or
judgment"). Furthermore, Ms. Liles, who was not a patient, seeks 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. See Reeves v. N. Broward Hosp.
Dist., 821 So. 2d 319, 322 (Fla. 4th DCA 2002) ("[N]ot every alleged wrongful act by a
healthcare provider, or its employee, amounts to medical malpractice. The alleged
wrongful act must be directly related to the improper application of medical services to
the patient and the use of professional judgment or skill. It is undisputed that [plaintiff]
received no medical services from the Hospital that required the use of professional
judgment or skill." (citation omitted)). For these reasons, the trial court properly
determined that this is not a case of medical malpractice subject to the requirements of
chapter 766.
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B. Cremation instruction
The Hospital further claims that the trial court erred in instructing the jury,
over the Hospital's objection, that "[a] cremation may not be performed until a legally
authorized person gives written authorization for such cremation." This sentence comes
directly from section 470.0255, Florida Statutes (2004), which addresses the
arrangement, authorization, and time requirements for a cremation to be performed.1
The Hospital claims that the cremation statutes do not apply because organs removed
from a body during an autopsy are biomedical waste excluded from the cremation
statutes. The Hospital argues that the cremation procedures are meant for funeral
homes and crematoriums and do not apply to the incineration of internal organs in a
medical setting.
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." § 470.002(24).
Human 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." § 470.002(23).2
1
Section 470.0255 was renumbered to section 497.607 effective October
1, 2005. Ch. 2004-301, § 132, at 2089, Laws of Fla. Chapter 470 addressed funeral
directing, embalming, and direct disposition, and these services are now governed by
chapter 497.
2
Section 470.002 was repealed effective October 1, 2005, ch. 2004-301, §
157, at 2103, Laws of Fla. (effective Oct. 1, 2005), and these terms are now defined in
section 497.005.
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Dr. Gordon testified that Ms. Sutka's organs were disposed of and
incinerated as biomedical or biohazardous waste. "Biomedical waste" is "any solid or
liquid waste which may present a threat of infection to humans." § 381.0098(2)(a), Fla.
Stat. (2004). It includes "nonliquid human tissue and body parts" but "does not include
human remains that are disposed of by persons licensed under chapter 470," such as
funeral directors, embalmers, and direct disposers. § 381.0098(2)(a).3 Biomedical
waste must be handled, treated, and disposed of according to the law set forth in
section 381.0098 and the regulations set forth by the Departments of Health and
Environmental Protection. § 381.0098(1).4
We agree that the trial court erred in applying the law regarding cremation
because Ms. Sutka's organs do not constitute a "dead human body" as set forth in
470.002(24) or "human remains" as defined in section 470.002(23).5 As Dr. Davis aptly
explained, the term cremation applies to "the entirety of the body, with or without
internal organs." And the testimony established that after the organs were dissected
and examined during the autopsy, they constituted biomedical waste. The Hospital was
3
Section 381.0098(2)(a) was amended to refer to chapter 497. Ch. 2004-
301, § 137, at 2095, Laws of Fla. (effective Oct. 1, 2005).
4
Biomedical waste must be treated "by steam, incineration, or an
[approved] alternative process" by the Department of Health prior to disposal, and
"[i]ncineration of biomedical waste shall be achieved in a biological waste incinerator
permitted by the Department of Environmental Protection." Fla. Admin. Code R. 64E-
16.007(1), (3).
5
We note that the legislature added a list of the licenses that may be
issued under chapter 497. See § 497.141, Fla. Stat. (2005); ch. 2004-301, § 11, at
1957-59, Laws of Fla. (effective Oct. 1, 2005). The procedures for cremations apply to
"any person licensed pursuant to this chapter." § 470.0255, Fla. Stat. (2004); §
497.607, Fla. Stat. (2005). Hospitals or pathologists performing autopsies are not
included in the list of chapter 497 licenses.
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harmed by the incorrect cremation instruction because the facts were undisputed that
Ms. Liles had not given written consent for cremation and because Ms. Liles was
permitted to question key witnesses regarding the consent required for cremation and
the lack of such consent in this case.
C. Tort of outrage
The Hospital further argues that Ms. Liles failed to demonstrate the
elements of the tort of outrage (intentional infliction of emotional distress).
The elements of the tort of [outrage] 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 emotion[al] distress; and
(4) the emotional distress was severe.
Gallogly v. Rodriguez, 970 So. 2d 470, 471 (Fla. 2d DCA 2007) (second alteration in the
original) (citing LeGrande v. Emmanuel, 889 So. 2d 991, 994-95 (Fla. 3d DCA 2004)).
"Conduct claimed to cause severe emotional distress must be 'so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency.' "
Matsumoto v. Am. Burial & Cremation Servs., Inc., 949 So. 2d 1054, 1056 (Fla. 2d DCA
2006) (quoting Ponton v. Scarfone, 468 So. 2d 1009, 1011 (Fla. 2d DCA 1985)). "[T]he
conduct must be evaluated on an objective basis to determine whether it is 'atrocious[]
and utterly intolerable in a civilized community.' That determination is a question of
law." Id. (quoting Ponton, 468 So. 2d at 1011) (citation omitted). In considering
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whether the trial court should have granted a directed verdict on this issue, we " 'must
evaluate the testimony in the light most favorable to the nonmoving party and every
reasonable inference deduced from the evidence must be indulged in favor [of] the
nonmoving party.' " GEICO Gen. Ins. Co. v. Hoy, 136 So. 3d 647, 651 (Fla. 2d DCA
2013) (quoting Sims v. Cristinzio, 898 So. 2d 1004, 1005 (Fla. 2d DCA 2005)).
The jury found that both Dr. Gordon and the Hospital had engaged in
"extreme and outrageous conduct [that] was the legal cause of severe emotional
distress to" Ms. Liles. The jury also found that the Hospital owed a nondelegable duty
for the acts of Dr. Gordon and that Dr. Gordon was acting as an agent of the Hospital
and within the scope of Dr. Gordon's authority. And Ms. Liles presented evidence
regarding both Dr. Gordon's conduct and the Hospital's conduct before and after Dr.
Gordon's involvement. Therefore, we must consider whether Ms. Liles presented
sufficient evidence to support a finding of outrage against Dr. Gordon (for which the jury
found the Hospital responsible) and whether she presented sufficient evidence to
support a finding of outrage against the Hospital for the Hospital's own actions.
First, we conclude that there was no basis to support a finding of outrage
against the Hospital for the actions of Dr. Gordon. Dr. Gordon received the autopsy
permission form and medical chart but never spoke to Ms. Liles and was not aware of
her wishes. Dr. Gordon had never had a family ask for the return of the organs; thus,
he should not have known that Ms. Liles wished for her mother's organs to be returned.
Dr. Gordon, Dr. Davis, and Dr. Strickland all testified that Dr. Gordon acted
appropriately and within the acceptable standard of care in treating the organs as
biomedical waste and not returning the organs to the body, as he had been doing for
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over thirty years. Even Ms. Liles' expert, Dr. Nelson, testified that not all facilities return
the organs to the bodies. Dr. Gordon testified that he did not mean to hurt Ms. Liles
when he disposed of her mother's organs. And Dr. Nelson, Ms. Liles' expert, even
testified that Dr. Gordon acted appropriately and that Dr. Nelson did not believe that Dr.
Gordon intended to inflict emotional distress on Ms. Liles. Therefore, there was no
evidence that Dr. Gordon's actions were outrageous and reckless or intentional.
However, we cannot conclude that there was no evidence to support the
jury's finding of outrage against the Hospital for its actions independent of Dr. Gordon.
Ms. Liles testified that she specifically informed the staff at the Hospital that she did not
want her mother cremated, and the evidence was undisputed that the Hospital's policy
was to incinerate organs that have been placed in red biohazard bags after an autopsy.
The consent form failed to inform Ms. Liles that her mother's organs would be
incinerated or how they would be incinerated. While cremation and incineration are
treated differently under the law, Ms. Liles testified that she believes that her mother's
organs were cremated against her mother's wishes. The environmental services
employee of the Hospital testified that the biomedical waste was incinerated in the same
incinerator with the Hospital's other trash. Dr. Nelson testified that this was outrageous
conduct, and even Dr. Gordon testified that "[y]ou don't mix biohazardous material with
non-biohazardous garbage" because it would be wrong and probably against the law.
Ms. Liles specifically testified that she was upset by the fact that her mother's organs
had been incinerated and that they had been mixed with trash. In light of this evidence
regarding the Hospital's conduct, we cannot say that the trial court erred in submitting
this limited issue to the jury. See Hoy, 136 So. 3d at 651 (" 'If there are conflicts in the
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evidence or different reasonable inferences that may be drawn from the evidence, the
issue is factual and should be submitted to the jury.' " (quoting Sims, 898 So. 2d at
1005)); Smith v. Telophase Nat'l Cremation Soc'y, Inc., 471 So. 2d 163, 166 (Fla. 2d
DCA 1985) (affirming denial of crematorium's motion for directed verdict in case where
jury found that crematorium committed tort of intentional infliction of emotional distress
when it gave deceased's widow another person's ashes and scattered deceased's
ashes at sea against his wishes; "it [is] within the province of the jury to find that the
facts, and the proper inferences from the facts, establish that [crematorium's] conduct
was extreme and outrageous"); see also Williams v. City of Minneola, 575 So. 2d 683,
691 (Fla. 5th DCA 1991) (recognizing that "our society . . . shows a particular solicitude
for the emotional vulnerability of survivors regarding improper behavior toward" their
dead loved one and that in such cases, "behavior which in other circumstances might
be merely insulting, frivolous, or careless becomes indecent, outrageous[,] and
intolerable").
D. Punitive damages
The Hospital argues that the award of punitive damages against the
Hospital cannot stand based on the errors discussed above. We agree. But we note
that Ms. Liles may be able to prove a claim for punitive damages on retrial for the
Hospital's actions independent of Dr. Gordon. See § 768.72(2)(b), Fla. Stat. (2004);
Chrysler Corp. v. Wolmer, 499 So. 2d 823, 825 (Fla. 1986).
III. Conclusion
The trial court should have entered a directed verdict in favor of the
Hospital on the issue of whether the Hospital was liable for the actions of Dr. Gordon on
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the tort of outrage.6 And the trial court erred in instructing the jury on the cremation
statute, and this erroneous instruction was harmful to the Hospital. Accordingly, we
reverse the final judgment and remand for a new trial on Ms. Liles' claims for outrage
and punitive damages against the Hospital for the Hospital's actions independent of Dr.
Gordon.
Reversed and remanded.
DAVIS, C.J., and CASANUEVA, J., Concur.
6
We note that the jury's verdict did not specify which damages were
attributable to Dr. Gordon and which damages were attributable to the Hospital. The
jury awarded $1,000,000 in total compensatory damages to Ms. Liles, after finding all
three defendants had committed the tort of outrage, but after Ms. Liles settled with Dr.
Gordon and Ridge Pathology, the trial court entered the final judgment awarding Ms.
Liles $500,000 in compensatory damages against the Hospital. Of this $500,000 in
compensatory damages, it is not clear what amount was based on the Hospital's liability
for Dr. Gordon's actions or what amount was based on the Hospital's own conduct.
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