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Presenting the Living Wrongful Death Plaintiff

By Tyler Goldberg-Hoss

It’s a situation not uncommon in medical malpractice: a delay in diagnosis of cancer. Often the damages are significant because when the cancer is finally detected, it has spread and the prognosis is not good. More likely than not your client will die as a result. But perhaps your client’s doctors have not found metastatic spread yet, and he is doing reasonably well. He doesn’t “look” like someone with cancer; he is back to work, back to living a semi-normal life.

You have just filed your case and are planning your discovery. And then it dawns on you; what are you asking for? Certainly the medical bills and past-wage loss. Of course you’d include the pain and suffering this delay caused. And your client’s wife has suffered terribly; that’s why you named her as a plaintiff as well.

But what about the future? The big damage this delay has caused is your client’s impending demise. You’ll be presenting evidence from an expert oncologist that your client has a 25 percent chance of 5-year survival: but more likely than not the cancer will kill him within 5 years. Will you be asking the court for the future damages associated with the likely spread of the cancer, the pain and suffering associated with treatment, and eventually dying? And what about the other potential claimants - your client’s children? How will you ask for wrongful death damages when he’s not yet dead?

THE CONSENSUS

These and other questions recently plagued us at the beginning of delay-in-diagnosis cases. There were no black-and-white answers I could find; rather the particular facts of our cases, together with our strategy choices, determined our course.

The consensus seems to be to ask for it all in the personal injury case for a number of reasons. These include:

WHERE DOES THAT CONSENSUS COME FROM?

There is scant law on the subject. The adage “one tort, one trial” came to the mind of many EAGLE members when I posted my query on the subject earlier this year. Collateral estoppel is another judicial principle that would seem to preclude two trials based on the same theory of negligence. “What are you crazy!?! You have to try and recover all you can in the first trial!” is a third.

But there is at least one other seemingly contradictory law that supports an argument for two separate actions. After all, a wrongful death case can’t be brought until the injured person dies. A statutory beneficiary’s cause of action, it would seem, doesn’t accrue until then. Perhaps a better question would be, what law is there on the subject?

LAW ON THE SUBJECT

Restatement of the Law

This secondary source addressed how courts nationally address the problem, distinguishing courts that treat a wrongful death claim as derivative of the injured person’s own claim (the vast majority) or independent of it. If “derivative,” the beneficiaries can sue only if the decedent would have been in a position to sue (i.e., hadn’t already received a judgment for personal injuries). In the minority position – that a wrongful death claim is “independent” of the personal injury claim – the decedent’s PI judgment would have no effect on the ability of the statutory beneficiaries to assert their claims.

The Restatement cites Sea-Land Services, Inc. v. Gaudet i as one case that at least allows in a crack of light that a subsequent wrongful death action may be permissible following a personal injury judgment. In such a scenario, wrongful death beneficiaries would have a claim for damages that hadn’t been asked for or awarded in the previous PI judgment.

Case Law

I found no case law on-point in Washington. However, there is a case that sheds some light on whether a Washington Court would consider a wrongful death claim derivative – and thus more likely to be collaterally estopped – rather than an independent claim. Washington, fortunately, doesn’t appear to follow the majority position that wrongful death claims are entirely derivative of the injured person’s own claim. In Woodall v. Avalon Care Center – Federal Way, LLC ii, Henry Woodall was admitted to defendant’s nursing facility. Upon admission, he signed an arbitration agreement, which provided that all disputes and claims for damages arising from Mr. Woodall’s care there would be arbitrated.

Mr. Woodall died a short time after admission; his heirs brought an action for wrongful death against Avalon; and Avalon sought to enforce the arbitration agreement. The trial court agreed with respect to the survival claims, but not for the wrongful death claims. Avalon appealed arguing, among other things, that the heirs were bound to the arbitration agreement because wrongful death claims are derivative. iii

The appeals court disagreed and affirmed the trial court. It explained:

… “[T]he action for wrongful death is derivative only in the sense that it derives from the wrongful act causing the death, rather than from the person of the deceased.” Thus, the wrongful death claims here are derived from the allegedly wrongful acts of Avalon, not from Henry. In short, characterizing the wrongful death claims as ‘derivative’ does not support the proposition that the heirs must arbitrate their claims for wrongful death.” (Emphasis in original.) iv

This opinion seems to leave open the possibility that a Washington court may make the distinction that a wrongful death action is only derivative insofar as it derives from the defendant’s negligence act, not from the decedent’s claim. One could therefore argue that collateral estoppel might only apply to the liability aspect of a claim.

Washington Pattern Jury Instructions

As for the injured person himself, things don’t really change: the personal injury plaintiff may recover for future things like pain and suffering. See WPI 30.06 Measure of Damages—Elements of Noneconomic Damages—Pain and Suffering, Etc.—Past and Future. It reads, in part: “The pain and suffering, both mental and physical experienced and with reasonable probability to be experienced in the future.” In a PI action, you could ask for loss of enjoyment of life as separate damages, something you could not do under a survival action post-mortem. See Otani v. Broudy v for more on this.

However, for survival claims – for the wife and the kids – there is nothing specific in the pattern jury instructions regarding future loss of consortium/parental guidance. See WPI 32.04 (loss of consortium) and WPI 32.05 (loss of parent). This may be a potential problem.

A REAL-LIFE WASHINGTON EXAMPLE: MESOTHELIOMA ADVENTURE

A mesothelioma case was brought to my attention by Kamela James (who was a defense attorney then but 100 percent plaintiff’s attorney now) and Zachary Herschensohn as an example of attempting to bring a wrongful death claim after bringing claims for the dying plaintiff and obtaining a jury verdict.

The plaintiff (husband and wife) in the original PI case (which neither James nor Herschensohn was involved in) was diagnosed with mesothelioma in 1999 and brought suit against a number of defendants as a result of being exposed to asbestos-containing products. The claims resulted in a successful jury verdict of over $1.7 million in January 2002. viAfter that verdict the plaintiff died, and in April 2004 his wife, as personal representative of his estate, brought a wrongful death claim (the case James and Herschensohn were involved in). One defendant moved for summary judgment arguing, among other things, collateral estoppel: the plaintiffs had already litigated and obtained a verdict, and the PR should not be allowed to relitigate the damages for pain and suffering, lost wages, medical expenses, and loss of consortium.

The judge was persuaded by the defense and barred nearly all claims brought this second time (with the exception of burial expenses). Her reasoning appeared to be in part on the record of the first trial reflecting that the plaintiffs had made references to the plaintiff’s eventual death as a result of asbestos exposure and her inference that the jury had awarded damages for same.

CASE STUDY – DELAY IN DIAGNOSIS OF MELANOMA

We recently had such a case that went to a private trial, one where we had expert testimony that statistically the plaintiff was more likely than not going to die from his cancer within 5 years. We added as plaintiffs all the potential future statutory beneficiaries of any wrongful death claim. During the private trial we were explicit in presenting statistical testimony that he was likely to die from this, and that we were claiming damages for his impending death.

The defense offered no expert causation testimony other than the attorney’s assertions that there are plenty of outliers, people who live long lives, and who’s to say how long one can live?

The problem in our case: our plaintiff looked fine. He was a relatively young guy, about 40. He had gone through a couple of surgical resections of parts of his foot, chemo and radiation therapy, and he was slowly getting back to normalcy. He was back at work, he limped just slightly, and his stamina hadn’t quite returned, but just to look at the guy, he was healthy. So we had a little cognitive dissonance to overcome. We were explicitly asking for damages as a result of this man’s impending death, but he didn’t look like he was deathly ill, and he was not going to testify regarding his terminal prognosis.

One thing we talked about and quickly eschewed was the notion of confronting our client with this truth. Under these facts, with a client who is just getting back to some measure of normal life, he either doesn’t know or doesn’t want to think about his prognosis, and it’s arguably not in his best interest to face that. We are not psychologists. Instead, we tried to be explicit through our causation experts that we were asking for death damages. It didn’t work.

It would have been better if his most recent provider, an oncologist, had testified about his impending death, but he was unwilling to express an opinion. We had a good expert on causation who was confident opining that our client had a 25 percent, 5-year survival rate. But our expert had never treated our client. The failure to bring in the client’s own treater to discuss his current state and prognosis ultimately had a significant negative impact on our result.

TIPS WE HAVE LEARNED

As many of you know, the adage “one tort, one trial” makes a lot of sense. From James and Herschensohn’s example in their mesothelioma case, the subsequent wrongful death trial allowed an opportunity to recover only for burial expenses, making the economics of the case untenable. We concluded that attempting to get as much as possible in the first go-around makes the most sense. This includes: naming all potential statutory beneficiaries as plaintiffs; getting expert testimony that your client is more likely than not going to die within a certain time frame; and, if possible, bringing in the treater to discuss chances for survival.

Tyler Goldberg-Hoss, WSAJ EAGLE member, is an associate in the Seattle firm of Chemnick Moen Greenstreet, which limits its practice to medical negligence claims. This article was first published in Trial News, March 2011.


i Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806 (1974).
ii Woodall v. Avalon Care Center – Federal Way, LLC, 155 Wn. App. 919, 922, 231 P.3d 1252 (Div. 1, 2010).
iii Id. at 923, 930.
iv Id. at 932, citing Johnson v. Ottomeier, 45 Wn.2d 419, 423, 275 P.2d 723 (1954).
v Otani v. Broudy, 151 Wn.2d 750, 92 P.3d 192 (2004).
vi Henderson v. ACandS, 01-2-02403-5 (King County Sup. Ct.).

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