Matthew Urbanowicz v. Trinity Health-Michigan

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MATTHEW URBANOWICZ and TRICIA UNPUBLISHED
URBANOWICZ, October 28, 2021
Plaintiffs-Appellants,
v No. 354970
Washtenaw Circuit Court
TRINITY HEALTH-MICHIGAN, doing business as LC No. 18-001198-NO
ST. JOSEPH MERCY HOSPITAL, ANN ARBOR,
and BELL-BOREK, INC., doing business as
BOREK JENNINGS FUNERAL HOME AND
CREMATION SERVICE, HAMBURG CHAPEL,
Defendants-Appellees.
Before: MURRAY, C.J., and JANSEN and RIORDAN, JJ.
PER CURIAM.
In this negligence action, plaintiffs appeal as of right the trial court’s orders granting
summary disposition to defendants. We affirm in part, reverse in part, and remand to the trial court
for further proceedings.
I. FACTS
This case concerns the stillborn birth of one of plaintiffs’ children in defendant Trinity
Health’s Ann Arbor hospital.1 Plaintiffs arranged to have the child cremated at one of defendant
Bell-Borek’s funeral homes. The funeral home sent an employee to the hospital to retrieve the
human remains of the stillborn child for cremation. However, the funeral home retrieved, and
cremated, the afterbirth material instead of the child’s human remains. The ashes of that afterbirth
material were presented to plaintiffs as being the ashes of their stillborn child. However, some
days later, the hospital discovered that the child’s human remains were still located in the morgue.
1
The deceased child’s sibling was born healthy.
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The hospital notified plaintiffs, the funeral home retrieved the child’s human remains for
cremation, and the child’s ashes were presented to plaintiffs.
Plaintiffs filed a complaint against defendants, alleging both negligent infliction of
emotional distress and mishandling of a corpse. The hospital moved for summary disposition
pursuant to MCR 2.116(C)(7), arguing that plaintiffs’ complaint sounded in medical malpractice
and that the applicable statutory period of limitations had already expired for a medical malpractice
claim. The trial court agreed with the hospital and granted it summary disposition, ruling that a
professional relationship existed between plaintiffs and the hospital, and that the actions taken by
the hospital required specialized medical knowledge consistent with claims that sound in medical
malpractice.
The funeral home then separately moved for summary disposition pursuant to
MCR 2.116(C)(10), arguing that the facts of the case were not sufficient to establish the elements
of negligent infliction of emotional distress because plaintiffs had not demonstrated that they had
objective and definite physical injuries arising from the emotional distress. The trial court agreed
with the funeral home and granted it summary disposition, ruling that plaintiffs’ emotional distress
was not of the nature required for a claim for negligent infliction of emotional distress because
plaintiffs failed to show resulting physical harm. This appeal followed.
II. DISCUSSION
A. MEDICAL MALPRACTICE
Plaintiffs argue that the trial court improperly granted summary disposition to the hospital
pursuant to MCR 2.116(C)(7) because their claims against it did not sound in medical malpractice.
We agree. “A trial court’s decision on a motion for summary disposition is reviewed de novo.”
Meemic Ins Co v Bischer, 323 Mich App 153, 157; 915 NW2d 1 (2018) (citation omitted). “In
determining whether the nature of a claim is ordinary negligence or medical malpractice, as well
as whether such a claim is barred because of the statute of limitations, a court does so under MCR
2.116(C)(7).” Bryant v Oakpointe Villa Nursing Ctr, 471 Mich 411, 419; 684 NW2d 864 (2004).
“When it grants a motion under MCR 2.116(C)(7), a trial court should examine all documentary
evidence submitted by the parties, accept all well-pleaded allegations as true, and construe all
evidence and pleadings in the light most favorable to the nonmoving party.” Clay v Doe, 311 Mich
App 359, 362; 876 NW2d 248 (2015) (quotation marks and citation omitted).
When determining whether a claim sounds in ordinary negligence or medical malpractice,
a reviewing court must determine “(1) whether the claim pertains to an action that occurred within
the course of a professional relationship; and (2) whether the claim raises questions of medical
judgment beyond the realm of common knowledge and experience.” Bryant, 471 Mich at 422. “If
both of these questions are answered in the affirmative, the action is subject to the procedural and
substantive requirements that govern medical malpractice actions.” Id. “A professional
relationship exists if a person or an entity capable of committing medical malpractice was subject
to a contractual duty to render professional healthcare services to the plaintiff.” Kuznar v Raksha
Corp, 481 Mich 169, 177; 750 NW2d 121 (2008). The claim raises questions of medical judgment
when “the reasonableness of the action can be evaluated by a jury only after having been presented
the standards of care pertaining to the medical issue before the jury [as] explained by experts.”
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Bryant, 471 Mich at 423. Moreover, “[t]he determination whether a claim will be held to the
standards of proof and procedural requirements of a medical malpractice claim as opposed to an
ordinary negligence claim depends on whether the facts allegedly raise issues that are within the
common knowledge and experience of the jury.” Dorris v Detroit Osteopathic Hosp Corp, 460
Mich 26, 45-46; 594 NW2d 455 (1999).
In this case, plaintiff Tricia gave birth at the hospital and there was a contractual duty for
the hospital to render professional healthcare services to her as she gave birth. Therefore, the
hospital shared a professional relationship with plaintiff Tricia. And the parties do not dispute that
the hospital, doctors, and employees who were rendering care to plaintiff Tricia were capable of
committing medical malpractice. However, the reasonableness of the hospital’s actions in
determining where and how to store plaintiffs’ stillborn child and how to appropriately catalog
whether the human remains were properly delivered to a third-party funeral home does not require
medical knowledge or medical judgment. In other words, such storage and delivery policies do
not require expert testimony. They are within the knowledge of any layperson who is familiar
with administrative tasks.
The hospital argues that care for a stillborn child is not something that a layperson would
know how to perform. However, plaintiffs are not claiming that the hospital’s medical care was
negligent, but rather that the hospital negligently cataloged and transferred the wrong human
remains to the funeral home. Resolving these allegations does not require specialized medical
knowledge that the jury would only be able to understand as explained by an expert. The hospital
also argues that Dorris stands for the proposition that the adequacy of a hospital’s policies and
procedures are matters that fall within the purview of medical malpractice. In Dorris, our Supreme
Court addressed whether the plaintiff’s claim sounded in ordinary negligence when the defendant
argued that the proper supervision and monitoring of patients were actions that required specialized
medical knowledge consistent with a claim for medical malpractice. Dorris, 460 Mich at 43. The
Court reasoned that “[t]he ordinary layman does not know the type of supervision or monitoring
that is required for psychiatric patients in a psychiatric ward,” and, therefore, the plaintiff’s claim
sounded in medical malpractice. Id. at 47. The hospital argues that this similarly follows for the
supervision and monitoring of stillborn children. However, plaintiffs’ issue in this case is not how
the hospital monitored, supervised, or maintained the stillborn child, but how the hospital
mistakenly delivered the wrong remains to a funeral home. Here, the issue is far simpler than
those concerning supervision and monitoring of active, live patients who were involved in Dorris.
The facts before us demonstrate that the hospital’s actions did not require specialized
medical knowledge. Therefore, the trial court erred by determining that plaintiffs’ claims against
the hospital sounded in medical malpractice and by granting summary disposition to the hospital
on that basis, see MCL 600.5805(8), and we accordingly reverse the trial court to that extent.
B. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Plaintiffs argue that the trial court improperly granted summary disposition to the funeral
home concerning their negligent infliction of emotional distress claims. We disagree. The trial
court granted the funeral home’s motion for summary disposition pursuant to MCR 2.116(C)(10),
which provides that the trial court may grant summary disposition in favor of the moving party
when, “[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and
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the moving party is entitled to judgment or partial judgment as a matter of law.” “A genuine issue
of material fact exists when the record, giving the benefit of reasonable doubt to the opposing
party, leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp,
469 Mich 177, 183; 665 NW2d 468 (2003).
Ordinarily, negligent infliction of emotional distress is recognized “when a plaintiff
witnesses negligent injury to a third party and suffers mental disturbance as a result.” Teadt v
Lutheran Church Missouri Synod, 237 Mich App 567, 581 n 6; 603 NW2d 816 (1999).
Specifically, a plaintiff must establish that
(1) the injury threatened or inflicted on the third person is a serious one, of a nature
to cause severe mental disturbance to the plaintiff, (2) the shock results in actual
physical harm, (3) the plaintiff is a member of the third person’s immediate family,
and (4) the plaintiff is present at the time of the accident or suffers shock “fairly
contemporaneous” with the accident. [Taylor v Kurapati, 236 Mich App 315, 360;
600 NW2d 670 (1999) (citation omitted).]
Thus, it is not sufficient that some negligent action caused plaintiffs to suffer severe
emotional distress. The claims for negligent infliction of emotional distress require that plaintiffs
either be present at the time the negligent acts to an immediate family member occurs or suffer
shock “fairly contemporaneous” with the negligent acts. In this case, plaintiffs’ child already had
deceased and his body was sent to the morgue in the hospital. Any alleged negligent acts, in which
the child’s remains were kept in the morgue instead of being delivered to the funeral home,
resulting in the afterbirth material being delivered to plaintiffs, occurred outside the presence of
plaintiffs. Additionally, plaintiffs have not demonstrated that they suffered severe emotional
distress “fairly contemporaneous” with the negligent acts, given that they learned about the error
several days after it occurred. Therefore, plaintiffs failed to establish a genuine issue of material
fact as to the fourth element of negligent infliction of emotional distress.2
The trial court properly ruled that plaintiffs failed to meet their burden to sustain a claim
for negligent infliction of emotional distress against the funeral home because there is no genuine
issue of material fact, upon which reasonable minds might differ, that neither plaintiff actually
witnessed the negligent acts or demonstrated that they suffered severe emotional distress
contemporaneously with the negligent acts. We therefore affirm the trial court’s dismissal of the
negligent infliction of emotional distress claims.3
2
We acknowledge that the funeral home primarily challenged the second element of negligent
infliction of emotional distress in the trial court, but we conclude that plaintiffs more clearly failed
to establish the fourth element.
3
The hospital argues on appeal that if this Court ruled in favor of the funeral home on the issue of
negligent infliction of emotional distress, it should similarly apply that ruling to the hospital itself
under the law-of-the-case doctrine. Although that doctrine is inapt here because it only binds an
appellate court on a subsequent appeal, see Grace v Grace, 253 Mich App 357, 362; 655 NW2d
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C. MISHANDLING OF A CORPSE
Plaintiffs argue that Michigan law recognizes a claim for emotional distress arising from
the mishandling of a corpse without a showing of resulting physical harm as well, and that the trial
court erred to the extent that it may have understood otherwise. We agree.4
“It seems to be settled by the great weight of authority that the unlawful and intentional
mutilation of a dead body gives rise to a cause of action on behalf of the person or persons entitled
to the possession, control, and burial of such body.” Deeg v City of Detroit, 345 Mich 371, 375;
76 NW2d 16 (1956). “Recovery for the refusal of the right to bury or for mutilation of the body
is rather based upon an infringement of a right than upon the notion that the property of plaintiff
has been interfered with.” Id. at 376 (quotation marks and citations omitted). See also Doxtator
v Chicago & WM Ry Co, 120 Mich 596, 597; 79 NW 922 (1899) (“[I]t has been held in a number
of well–considered American cases that the one whose duty it is to care for the body of the
deceased is entitled to possession of the body, as it is when death comes, and that it is an actionable
wrong for another to interfere with that right by withholding the body or mutilating it in any way.”).
More recently, this Court explained as follows:
Under tort law, recovery for the intentional or negligent mutilation of a dead
body is based upon infringement of the right of the plaintiffs to have the body
delivered for burial and interred without mutilation, other than that present at the
time of death. Where a person has the right to bury a body, interference with that
right is generally actionable. The trial court properly recognized this theory as the
basis for plaintiffs’ claims under Counts I, II and IV. In addition, the trial judge
properly recognized that the measure of damages for mutilating or otherwise
improperly treating a corpse is to measure the mental anguish or humiliation
suffered by the plaintiffs who have been denied the comfort of knowing that the
595 (2002), we agree with the hospital that plaintiffs’ claims of negligent infliction of emotional
distress against the hospital must fail for the same reasons that they fail against the funeral home.
4
We acknowledge that plaintiffs’ briefing in the trial court and on appeal is somewhat muddled
with respect to this issue, sometimes suggesting that mishandling of a corpse is a unique type of a
negligent infliction of emotional distress tort that does not require a showing of physical harm, and
at other times suggesting that mishandling of a corpse is an independent tort. However, we
conclude that plaintiffs have sufficiently preserved the argument that mishandling of a corpse is
an independent tort, particularly in light of the fact that plaintiffs’ July 27, 2020 motion for
reconsideration in response to the grant of summary disposition in favor of the hospital argued
“[t]hat Plaintiffs’ claim for Interference with the Right of Burial, Count II of Complaint, is a
common law action under both state and federal law,” and the fact that plaintiffs argued at the
August 27, 2020 hearing on the funeral home’s motion for summary disposition that “count 2 of
Plaintiff’s [sic] complaint lays out a wrongful interference with the right of burial claim. Uh, I’ve
been using it interchangeably with, uh, mishandling of a corpse.” We also note that plaintiffs’
brief on appeal extensively quotes three cases from foreign jurisdictions for the proposition that
mishandling of a corpse is an independent tort that does not require a showing of physical harm.
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deceased has been given a comfortable and dignified resting place. Recovery for
injuries produced by emotional distress caused by defendants’ tortious behavior is
available even without accompanying physical impact. [Allinger v Kell, 102 Mich
App 798, 808-809; 302 NW2d 576 (1981), rev’d in part on other grounds 411 Mich
1053 (1981) (internal citations omitted; emphasis added).]
Our Supreme Court has recognized similar principles as well in recent years. In Dennis v
Robbins Funeral Home, 428 Mich 698; 411 NW2d 156 (1987), the defendant funeral home
allegedly committed negligence in handling the decedent’s remains. Id. at 700. The issue before
the Court was whether a two-year or three-year period of limitations applied to the plaintiff’s
complaint. Id. The Court ruled that the three-year period of limitations under MCL 600.5805(8)
applied to the complaint,5 observing that the statute applied “to traditional and primarily common-
law torts.” Id. at 705-706. In a footnote to that sentence, the Court quoted the following rule from
the Second Restatement of Torts: “One who intentionally, recklessly or negligently removes,
withholds, mutilates or operates upon the body of a dead person or prevents its proper interment
or cremation is subject to liability to a member of the family of the deceased who is entitled to the
disposition of the body.” Id. at 706 n 8, quoting Restatement (Second) of Torts § 868. Dennis
thus both recognized the common-law tort of mishandling a corpse and indicated that the Second
Restatement set forth an accurate summary of that tort in Michigan.
Further, while not cited by our Supreme Court, we note that comment a to § 868 provides
that a showing of physical harm is not necessary for the purposes of the tort:
One who is entitled to the disposition of the body of a deceased person has
a cause of action in tort against one who intentionally, recklessly or negligently
mistreats or improperly deals with the body, or prevents its proper burial or
cremation. The technical basis of the cause of action is the interference with the
exclusive right of control of the body, which frequently has been called by the
courts a “property” or a “quasi-property” right. This does not, however, fit very
well into the category of property, since the body ordinarily cannot be sold or
transferred, has no utility and can be used only for the one purpose of interment or
cremation. In practice the technical right has served as a mere peg upon which to
hang damages for the mental distress inflicted upon the survivor; and in reality the
cause of action has been exclusively one for the mental distress. . . . There is no
need to show physical consequences of the mental distress. [Restatement (Second)
of Torts § 868, comment a (emphasis added.)]
In light of these authorities, particularly our decision in Allinger, we conclude that plaintiffs
are not required to show physical harm arising from the alleged emotional distress to the extent
that plaintiffs raised claims for mishandling of a corpse. As Allinger explained, consistent with
the Second Restatement of Torts, “[r]ecovery for injuries produced by emotional distress caused
by [the tort] is available even without accompanying physical impact.” Allinger, 102 Mich App
at 809. In this regard, the tort of mishandling of a corpse is distinct from the tort of negligent
infliction of emotional distress. Although both torts fundamentally seek damages for emotional
5
MCL 600.5805 has since been amended several times.
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distress, only the latter tort requires a showing of physical harm arising from that emotional
distress. See Taylor, 236 Mich App at 360.
Therefore, on remand, the trial court should consider plaintiffs’ mishandling of a corpse
claims against the hospital without imposing a requirement that they show physical harm.
However, we nonetheless affirm the trial court’s dismissal of plaintiffs’ mishandling of a corpse
claims against the funeral home. As the trial court observed at the August 27, 2020 hearing, the
funeral home merely “picked up the [afterbirth] material.” It was not responsible for any
mishandling or mistreatment of the stillborn child in any respect. Any alleged mishandling would
arguably be the fault of the hospital alone. In other words, because plaintiffs’ claims require them
to show that a defendant withheld a corpse from them, see Dennis, 428 Mich at 706 n 8, and
because plaintiffs did not show that the funeral home ever withheld the stillborn child from them,
they failed to establish a genuine issue of material fact without respect to their mishandling of a
corpse claims against the funeral home. See West, 469 Mich at 183.
III. CONCLUSION
The trial court erred in ruling that plaintiffs’ complaint against the hospital sounded in
medical malpractice, and we reverse that part of the trial court’s ruling. The trial court was
ultimately correct, however, in dismissing the negligent infliction of emotional distress claims
brought by plaintiffs against both defendants because plaintiffs failed to establish a genuine issue
of material fact with regard to that tort. We therefore affirm the trial court’s ruling to that extent.
Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings
concerning plaintiffs’ mishandling of a corpse claims against the hospital. We do not retain
jurisdiction.
/s/ Christopher M. Murray
/s/ Kathleen Jansen
/s/ Michael J. Riordan
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