The Problem: Delay
It’s a situation not uncommon in medical malpractice: a delay in diagnosing 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, and he is doing reasonably well. He doesn’t “look” like someone with cancer, and he is back to work, back to living a semi-normal life.
Once you file your case and are planning discovery strategies, 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. 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 significant damage this delay of diagnosis has caused is your client’s impending demise. You’ll be presenting evidence from an expert oncologist that your client has only a 25% chance of 5-year survival: 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? Death? And what about the other potential claimants? How will you ask for wrongful death damages when your client is still alive?
The Consensus
These and other questions plagued us. There were no black and white answers I could find; rather the particular facts of our case, together with our strategy choices, determined our course as we went.
The consensus seems to be to plead all damages in the personal injury (PI) case, for a number of reasons, including:
• The impact of a dying client on the stand compared with initiating another case after death;
• Putting as much money in your client’s pocket as you can so he or she might use and enjoy it before he dies;
• The economy of trying one case instead of two; and,
• The risk of planning two lawsuits (a PI and a wrongful death) and overreaching for future damages in the PI case, effectively precluding you for asking for the same in a future lawsuit due to collateral estoppel.
Where Does That Consensus Come From?
There is scant law on the subject. The adage “one tort, one trial” came to the minds of many EAGLE members when I posted my query on the subject. 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 for your clients 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.
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 has no effect on the ability of the statutory beneficiaries to assert their claims.
The Restatement cites Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806 (1974) as one case that at least allows a possibility 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 sought or awarded in the previous PI judgment.
Case law
I found no Washington case law on point. 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, 155 Wn. app. 919, 922, 231 P.3d 1252 (Div. 1, 2010), Henry Woodall was admitted to defendant’s nursing facility. Upon admission, he signed an arbitration agreement, which required all disputes and claims for damages arising from Mr. Woodall’s care to be arbitrated. Id.
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. Id. The trial court agreed with respect to the survival claims, but not for the wrongful death claims. Id. Avalon appealed, arguing, among other things, that the heirs were bound to the arbitration agreement because wrongful death claims are derivative. Id. at 923, 930.
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.
Id. at 932, citing Johnson v. Ottomeier, 45 Wn.2d 419, 423, 275 P.2d 723 (1954) (emphasis in original).
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 (WPI)
As for the injured person himself, things don’t really change: the personal injury plaintiff may recovery 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” (emphasis added). And in a PI action, you could plead for loss of enjoyment of life as a separate damage, something you could not do under a survival action post-mortem. See Otani v. Broudy for more on this.
However, for the 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: The Mesothelioma Adventure
A plaintiff-husband in a personal injury case filed the claim after being diagnosed with mesothelioma in 1999. He and his wife (also a plaintiff) brought their claims against several defendants due exposures to asbestos-containing products. At the end of the trial the jury awarded over $1.7 million in January 2002 (see Henderson v. ACandS, 01-2-02403-5).
After that verdict, the plaintiff died and in April 2004, his wife, as personal representative of his estate, brought a wrongful death claim. One defendant moved for summary judgment arguing, among other things, collateral estoppel since the plaintiffs had already litigated and obtained a verdict and that the PR should not be allowed to relitigate damages for pain and suffering, lost wages, medical expenses, and loss of consortium.
The judge was persuaded by the P.R. defense and barred nearly all claims with the exception of burial expenses. Her reasoning appeared to be based, in part, on the record of the first trial which reflected that the plaintiffs made references to the plaintiff-husband’s eventual death as a result of this asbestos exposure. The judge inferred that the jury had awarded damages for the same.
Case Study – Delay in Diagnosis of Melanoma
We recently had such a case. We had a private trial and presented expert testimony that the plaintiff statistically 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, and during our trial we were explicit in presenting statistical testimony that he was likely to die from this, and that we were claiming damages for his future 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 biggest problem in our case: our plaintiff looked fine. He was a relatively young man, 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 normal. He was back at work, he limped just slightly, and his stamina hadn’t quite returned, but just to look at the guy, he seemed healthy. So, we had some 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 terminally ill, and he was not going to testify regarding his prognosis.
One thing we talked about and quickly eschewed was the notion of confronting our client with this truth while on the stand. 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 treater, an oncologist, had testified about his prognosis, but he was unwilling to express an opinion. We had a good expert on causation who was confidant opining that our client had a 25% five-year survival rate. But our expert had never treated our client. The failure to bring in his own treater to discuss his current state and prognosis ultimately had a negative impact on our result.
Tips we learned
As many of you know, the adage “one tort, one trial” makes a lot of sense. In the mesothelioma case, the subsequent wrongful death trial only allowed an opportunity to recover burial expenses, making the economics of the case untenable. We concluded that presenting a complete damages case makes the most sense. This requires once 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 treating physician 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 originally appeared in the January 2012 Trial News, found here:
https://www.washingtonjustice.org/index.cfm?pg=trialNewsDB&tnType=view&indexID=10079
Publication Date: January 2012
Volume: 47-5
Author: Tyler Goldberg-Hoss
Categories: Medical Negligence, Cancer, Case Law Analysis, Damages, Life Care Plan
