Perry v. St. Francis Hosp. & Medical Center, Inc.

• Decision Date: 27 September 1994
• Docket Number: No. 93-4231-SAC.,93-4231-SAC.
• Parties: Mary Ann PERRY, Ron Perry, Don Perry, Linda Huntsman, Beverly Blassingame, and Vickie Puff, Plaintiffs, v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER, INC. and American National Red Cross, Defendants.
• Court: U.S. District Court — District of Kansas

865 F. Supp. 724

Mary Ann PERRY, Ron Perry, Don Perry, Linda Huntsman, Beverly Blassingame, and Vickie Puff, Plaintiffs, v. SAINT FRANCIS HOSPITAL AND MEDICAL CENTER, INC. and American National Red Cross, Defendants.

No. 93-4231-SAC.

United States District Court, D. Kansas.

September 27, 1994.

Nancy E. Freund, Murphy & Freund, Ronald P. Pope, Eugene B. Ralston & Assoc., P.A., Topeka, KS, for plaintiffs.

Thomas L. Theis, Sloan, Listrom, Eisenbarth, Sloan & Glassman, Topeka, KS, for St. Francis Hospital.

James S. Pigg, Kristine A. Larscheid, Fisher, Patterson, Sayler & Smith, Topeka, KS, for American Nat. Red Cross.

MEMORANDUM AND ORDER

CROW, District Judge.

The case comes before the court on the defendant St. Francis Hospital's motion to dismiss (Dk. 32) and the defendant Red Cross' motion to dismiss and motion to strike (Dk. 33). According to the parties, the motion to strike is moot. The court will proceed with the motions to dismiss.

This is an organ donation case in which the plaintiffs allege the defendants' harvest procedure exceeded that to which consent had been given. Kenneth Perry suffered a heart attack at his home and was pronounced dead at the defendant St. Francis Hospital. Shortly thereafter, Nurse McDonald approached the Perry family with an organ donation form that had been filled out for donation of all organs. The family initially refused to donate any organs. Relying on representations that certain donations would not disfigure the deceased, the Perry family eventually agreed to donate Kenneth Perry's cornea and bone marrow. It is further alleged that the Perry family understood the corneas could be taken without removing the deceased's entire eyes and that the bone marrow could be extracted without removing the deceased's long bones. After it was modified, the written consent form was signed by Mary Ann Perry, the wife of the deceased. A retrieval team consisting of defendants' agents later removed the long bones and entire eyes from the deceased. The plaintiffs first learned of the disfigurement to the deceased when the funeral home informed them that Kenneth Perry's body required heavy clothing to hide the missing bones.

The surviving spouse, Mary Ann Perry, and the surviving adult children, Ron Perry, Don Perry, Linda Huntsman, Beverly Blassingame and Vickie Puff, bring this suit seeking recovery on four different legal claims: Count I-Intentional Infliction of Emotional Distress; Count II-Breach of Contract; Count III-Negligence; and Count V-Conversion. Both defendants move to dismiss all claims of the surviving adult children and the negligence claim in count three.

A court may dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). Dismissal is appropriate "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). "The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true." Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993).

A court judges the sufficiency of the complaint accepting as true the well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiff. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987).¹ It is not the court's function "to weigh potential evidence that the parties might present at trial." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir.1991). The court construes the allegations in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991). These deferential rules, however, do not allow the court to assume that a plaintiff "can prove facts that it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged." Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983) (footnote omitted). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th Cir.1989).

The court's legal research on these motions went well beyond that cited by the parties. The parties limited their research, for the most part, to the three Kansas Supreme Court decisions on actions for interference with a dead body, Burgess v. Perdue, 239 Kan. 473, 721 P.2d 239 (1986); Hamilton v. Individual Mausoleum Co., 149 Kan. 216, 86 P.2d 501 (1939); and Alderman v. Ford, 146 Kan. 698, 72 P.2d 981 (1937). From its research, the court concluded that Kansas law is not nearly as developed in this area as the law in many other jurisdictions. The parties, however, have not advanced here the arguments that would require this court to look to other jurisdictions in resolving the issues. The court will decide the motions from what has been argued.

A. Standing of Adult Children

When there is a surviving spouse, Kansas common law, according to the defendants, recognizes that the surviving spouse is the only person with a legally protected interest in receiving the deceased's body. The defendants argue the Uniform Anatomical Gift Act ("Act"), in particular K.S.A. 65-3210(b), reflects this same common-law rule.² Because the plaintiffs' different claims are inextricably linked to the allegation that Kenneth Perry's body was disfigured, the defendants argue that only the widow and not the adult children have standing to sue. In opposition, the adult children maintain their standing arises from each of them being asked to consider making a donation and from them discussing the donation before having their mother sign the donation consent form. They also assert that a contract between the defendants and them exists by reason of what they were told would be the surgical procedures. The adult children refer to their rights under the Act to make donations if their mother had not been available. They insist that each of them would have signed the consent document had there been more spaces on the form for their signatures.

Kansas recognizes that the next of kin has a personal right to possess the dead body of a relative for purposes of preserving and burying it. Alderman v. Ford, 146 Kan. at 700, 72 P.2d 981. Attendant to this right is the right to receive the dead body in the condition in which it was when the relative died. Id. at 699, 72 P.2d 981. Interference with these rights is an actionable wrong in Kansas. Id. at 702, 72 P.2d 981.

Generally, the person who has the right to possess and bury the body is the only proper party to sue and recover for the interference with that right. Steagall v. Doctors Hospital, 171 F.2d 352, 353 (D.C.Cir. 1948); Burns v. Anchorage Funeral Chapel, 495 P.2d 70, 73 (Alaska 1972); O'Dea v. Mitchell, 350 Mass. 163, 213 N.E.2d 870, 872 (Mass.1966); Dumouchelle v. Duke University, 69 N.C.App. 471, 317 S.E.2d 100, 103 (N.C.Ct.App.1984); Whitehair v. Highland Memory Gardens, Inc., 174 W.Va. 458, 327 S.E.2d 438, 443 (W.Va.1985); Restatement of Torts (Second) § 868 cmts. a, b (1977); 22A Am.Jur.2d Dead Bodies § 137 (1988); 25A C.J.S. Dead Bodies § 9 at pp. 520-21 (1966); James O. Pearson, Jr., Annotation, Liability for Wrongful Autopsy, 18 A.L.R. 4th 858, 865 (1982). This right typically belongs to the surviving spouse and, if none, then passes to the next of kin in the order of relation. Steagall, 171 F.2d at 353; Burns, 495 P.2d at 73; Whitehair, 327 S.E.2d at 443; Annot. 18 A.L.R.4th at 865.

There is nothing in its case law to suggest that Kansas courts would depart from these general standing rules. In Alderman, the Kansas Supreme Court held that the plaintiff widow was rightfully entitled to dispose of her deceased husband's body and to sue for an unauthorized autopsy. The Kansas court said, in relevant part:

So in this case, the plaintiff had a right to the body of her dead husband in the condition in which it was when he died. She alone could give authority for an autopsy on that body, except in case where death might occur under such circumstances as to warrant the coroner in conducting an autopsy, a circumstance we do not have here. The unauthorized cutting into the body of plaintiff's husband was an invasion of that right.

146 Kan. at 702-703, 72 P.2d 981 (emphasis added). In Hamilton, the defendant's employees unearthed the plaintiff's mother's vault, removed the mother's casket and placed it into a new vault. The Kansas Supreme Court found that the plaintiff, as a child of the deceased, had standing to sue: "At the death of the husband of Olive Wright the right of care for the body of the mother belonged to all the children alike." 149 Kan. at 220, 86 P.2d 501. Both Alderman and Hamilton are consistent with the general rule that the person with the right to possess and bury the dead body is the only proper party to sue and recover for the interference with that right.

Kansas has adopted the Uniform Anatomical Gift Act, which is set out in K.S.A. 65-3209 through 65-3218.³ At K.S.A. 65-3210, the Act provides:

(b) Any of the following persons, in order of priority stated, when persons in prior classes are not available at the time of death, and in the absence of actual notice of contrary indications by the decedent or actual notice of opposition by a member of the same or a prior class, may give all or any part of the decedent's body for any purpose specified in K.S.A. 65-3211:

(1) the spouse,

(2) an adult son or daughter,

(3) either parent,

(4) an adult brother or sister,

(5) a guardian of the person of the decedent at the time of his

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