CAN A PLAINTIFF RECOVER FOR AN EXPECTED (BUT NOT YET OCCURRED) WRONGFUL DEATH IN A MEDICAL MALPRACTICE ACTION?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Natalini v. Little, 278 Kan. 140, 92 P.3d 567 (2004).

This case addresses the following issue:

Can a Plaintiff recover for an expected (but not yet occurred) wrongful death in a medical malpractice action?

This case arises from a misdiagnosis of lung cancer by Defendant. Id. at 140. Because of the delayed diagnosis, all parties agreed that Plaintiff would die earlier than if he had been timely diagnosed. Id. However, the court determined that the jury improperly awarded damages for the pending wrongful death of Plaintiff, and such damages were not available in a medical malpractice action, even if the timing of such a death will prohibit a wrongful death claim upon the Plaintiff’s actual death. Id. at 146.

Plaintiff sought treatment from Defendant after discovering two nodules in his chest. Id. at 141. Defendant ordered a CT scan and chest x-ray, but found both inconclusive. Id. Defendant did not have additional tests done until Plaintiff returned on his own initiative two years later. Id. At that point, Plaintiff was finally diagnosed with cancer by Defendant. Id. However, the cancer had greatly spread and Plaintiff was only expected to live a couple of more years. Id. Plaintiff alleged that he would suffered a premature death as a result of Defendant’s malpractice, and the jury awarded Plaintiff damages based on this argument. Id.

The court reviewed the statute for wrongful death and found that the types of damages sought by Plaintiff fell exclusively within that cause of action. Id. at 143. Thus, “even if a malpractice plaintiff’s premature death is highly likely to be caused by the malpractice,” such damages can only be recovered through a wrongful death action after the malpractice plaintiff’s death. Id.

The court noted that this places Plaintiff and Plaintiff’s family in a difficult and unfair position. Id. In order to bring a claim for wrongful death, there must be a tort claim that the deceased could have brought which resulted in the wrongful death. Id. If the victim of the tort waits too long, and this underlying tort becomes time-barred, the wrongful death claim fails. Id.

Here, Plaintiff’s medical malpractice claim had to be filed within four years of the inadequate care. Id. However, Plaintiff lived more than four years, though his premature death was imminent. Id. The court was sympathetic, but noted that if Plaintiff were still alive after four years, the operation of the wrongful death statute would prohibit any wrongful death claim ever being filed. Id. Thus, Plaintiff and his family were left in an extremely unfair position, and the jury’s award of damages based on Plaintiff’s premature death were reversed. Id.