Often when we get calls from folks who have lost loved ones due to medical malpractice, it is in the first weeks and months of the grieving process. Spouses who have lost their significant others are still processing this often sudden and traumatic life changing event. Or, siblings are searching for answers, and are often still angry about a parent whose life was cut short. Perhaps most distressing are the parents of children who have died, sometimes adult children, and sometimes minors. Universally, these grieving people are unaware of what the law can and cannot do to hold accountable the health care provider responsible for the death and compensate the survivors to the extent possible for their loss. What many folks do not realize is that no matter how significant, in the eyes of the law their grief is most often worthless. Because there are no punitive damages allowed in Washington state, the law has made equal the value of accountability and compensation for harm: they are two sides of the same coin.
In considering the harm, many clients are surprised to hear that their grief – the suffering they currently endure based on their loss – is typically not part of the calculation. It is true: damages in wrongful death claims in Washington are almost always “fixed” at death. (see the 1972 case Stuart v. Consolidated Foods Corp., 6 Wn. App. 841).
As an attorney representing the widow of a victim of medical malpractice, I don’t get to present evidence to a jury of how much suffering my client went through in the weeks, and months, and years following the untimely loss of her husband. However, this is not always a bad thing. For example, if my client had grieved for a few months, and then was fortunate to find a new spouse and get remarried, the defendant’s attorney could not present evidence of this remarriage to the jury.
So, I am left with presenting evidence of the nature of the relationship as it existed in the months and few years prior to death. This evidence allows a jury to consider that a similar relationship would have likely existed if the death had not occurred. However, this still does not allow for a jury to compensate someone for the specific harm of grief.
One exception to that is when a child dies. In Washington, parents who have suffered the loss of a child due to malpractice are entitled to have their grief considered and valued by a jury. This is because there is a specific statute or law that parents may use: R.C.W. 4.24.010: Action for injury or death of child.
Cases that have been decided by appellate courts in Washington have interpreted this statute as allowing for this. For example, this case from the Supreme Court from 1971:
“We construe the language ‘loss of love . . . and . . . injury to or destruction of the parent-child relationship’ To provide recovery for parental grief, mental anguish and suffering as an element of damages intended by the legislature to be recoverable under appropriate circumstances in cases involving the wrongful death of or injury to a child.” Wilson v. Lund, 80 Wn. 2d 91, 96, 491 P.2d 1287 (1971).
Why is this? Why is a parent’s grief compensable, but a spouse’s grief is not? Is there something different about the nature of parental grief?
Certainly, it seems that the difference is attributable to the different statutes at issue: the above statute is specific to the death of a child, versus the more general wrongful death statutes. But other than that, I cannot find any specific reason – and specifically no public policy reason – behind this difference.
As with most other instances where the government – and specifically the legislature – has put limits on the jury’s ability to allow for compensation as it sees fit, it doesn’t seem to me to be purely a fairness calculation.
