Anticipatory Wrongful Death Damages: A Visit to Alice in Wonderland[dagger]

I.

INTRODUCTION

Parents occasionally are called upon to reassure young children that the monstrous character portrayed in some movie or television show is purely fictitious. The youngsters quickly find comfort in hearing that the scary character is "just pretend." In the real world of courthouse melodrama, however, this author recently found himself hoping for reassurance that the measure of damages warranted by a given set of jury instructions, which permitted an award of wrongful death damages to a living, but terminally ill patient (and his family), was "just pretend." Unfortunately, no one could allay those fears.

Witnessing the award of wrongful death damages to a live plaintiff and his adult children conjured thoughts of a world much like Alice's "Wonderland." These questionable and curious events, which create a new monster for the legal system, are not pretend. In fact, they could find their way through the "rabbit hole" into any courtroom. This article attempts to recount how that seemingly impossible theory of recovery could become a stark reality. Hopefully, it also provides some guidance on how to challenge any attempt to assert such a legally unsupportable theory of damages and parse its transparency.

The facts of the case arise out of a medical malpractice claim. A sixty-year-old father of five adult children was diagnosed by his family physician with a one-centimeter coin lesion on his right lung pursuant to a chest x-ray. He was timely and appropriately referred to a pulmonologist for follow-up care. The pulmonologist initially performed a Computed Tomography ("CT") scan which identified two small additional lesions. The pulmonologist thereafter ordered a follow-up CT scan after another six months. The subsequent CT scan revealed not only a slight increase in the size of the earlier identified nodules, it also identified a new nodule in a different lung field of the right lung. Consequently, the pulmonologist recommended an additional CT scan in three months.

For reasons that are not important, the plaintiff objected to another CT scan and eventually convinced the pulmonologist to permit follow-up with a plain chest film. The chest film was interpreted as showing resolution of the two original lesions and no evidence of the new lesion demonstrated on the earlier CT scan. The plaintiff then was advised by his family physician that, based on the results of the plain chest film, the nodules in his lung had "resolved." The plaintiff understood his family physician's statement to mean that he did not have lung cancer. Therefore, the plaintiff received no follow-up care for approximately seventeen months.

Approximately seventeen months later, the plaintiff was diagnosed with Stage III-B metastatic lung cancer with two separate primary tumors. Initially, the patient benefited from chemotherapy and radiation and remained in remission until three months before trial, when it was discovered that the lung cancer had metastasized to his liver. At that time, the plaintiff was advised that he had a life expectancy of six to ten months. Consequently, the plaintiff appeared at trial as the proverbial "dead man walking" due to his Stage III-B lung/liver cancer.

The applicable standard of care required that the pulmonologist see the patient for clinical evaluation after the chest film and order an additional follow-up CT scan to confirm that the lesions had resolved. Despite knowledge that the chest film was an inappropriate diagnostic follow-up test to eliminate a diagnosis of lung cancer, the pulmonologist did not contact the patient to schedule a follow-up office visit or a follow-up CT scan to confirm the results of the chest film. At the pretrial conference, the defendants admitted that the standard of care was breached in failing to properly monitor and/or follow up with the patient after obtaining the last allegedly benign chest film. Consequently, the case was tried on a damages only basis.

The plaintiff initially sought to introduce evidence that, because of the delayed diagnosis, his life expectancy was shortened by approximately seventeen years. Because he planned to live at least seventeen more years, the plaintiff claimed economic damages in the form of lost future railroad annuity payments (the difference between monthly payments made if he were alive as compared to monthly payments paid upon his death) and railroad pension benefits which were payable monthly until his death (the difference between payments lasting six to eight months as compared to seventeen years, based on a "normal" life expectancy).

The plaintiff also sought to introduce evidence of his non-economic damages, which consisted of increased pain and suffering, and he asserted at trial that his wife and five adult children were entitled to future non-economic damages based upon the fact that his death was imminent. The plaintiff's wife sought past non-economic consortium damages for loss of "sex, society, and services," making a claim as well for future non-economic loss for the grief, bereavement, and loss of advice and comfort that she would experience in the future upon her husband's death. The adult children also sought damages for future non-economic losses they would sustain upon their father's death.

The defendant filed a motion in limine, objecting to introduction of lost future income on grounds that the plaintiff's life expectancy was speculative. Had the plaintiff been timely diagnosed with lung cancer, the plaintiff would have been diagnosed with a Stage I disease. Stage I lung cancer has a five year survivability range of 80-90%. Stated differently, if the plaintiff was timely diagnosed and treated with surgical resection of his lung lesions, he had an 80-90% statistical probability of being alive for five years without a recurrence of his lung cancer within that five year period. However, no expert opined that he would be "cured," since there is no definitive cure for lung cancer. Consequently, even if the defendant had complied with the requisite standard of care, the plaintiff remained at risk for recurrence of his cancer for the remainder of his life. Because the defendant did not cause his cancer, the plaintiff had a reduction in an otherwise "normal" life expectancy of an uncertain and speculative length of time.

The plaintiff also was a smoker who had some evidence of Chronic Obstructive Pulmonary Disease. Because of this co-morbidity factor, the plaintiff was never entitled to a "normal" life expectancy since the wealth of statistical information indicates that smokers generally have a shortened life expectancy due to smoking. The defense argued that the plaintiff should have been prohibited from offering evidence of an anticipated life expectancy which did not account for the reduction in his life expectancy caused by lung cancer and other co-morbidity factors, such as Chronic Obstructive Pulmonary Disease caused by smoking.

Nevertheless, the trial court denied the motion, ruling that any shortening of the plaintiff's life expectancy was an issue for cross-examination. The court reasoned that the diminished life expectancy owing to a delay in the diagnosis of lung cancer affected the weight and sufficiency of the plaintiff's evidence and not its admissibility.

At trial, the plaintiff presented evidence from an economist projecting the plaintiff's future lost income on a yearly basis. The jury then could decide how many years of life the plaintiff would have lived and could assign an appropriate measure of damages based on its assessment of the plaintiff's life expectancy. Consequently, there was ample evidence to support the plaintiff's past and future economic loss.

When the admission of all evidence was concluded, the court held an instruction conference. The plaintiff tendered instructions containing a special interrogatory and a separate line item for entry of a verdict on behalf of the plaintiff's family. Specifically, the special interrogatory set forth in the verdict form read as follows: "Do you believe that as a result of defendant [Dr. Smith's] admitted negligence that [plaintiff] will die a premature death?" Assuming the jury responded "yes" to the special interrogatory, they were then instructed to award non-economic and economic damages which they believed the "plaintiff's family" (including his spouse) sustained as a result of the doctor's admitted negligence in acting below the standard of care.

Several objections were lodged against the instructions. First, the recovery of wrongful death damages in Kansas is purely a statutory right of recovery. At the risk of stating the obvious, the statute requires that death occur as a result of the defendant's negligence.

Kansas case law specifically holds that, "a right of action for damages for death by wrongful act . . . did not exist at common law," and "does not obtain in the absence of the wrongful death statute.1 Therefore, any damages resulting from a person's death are recoverable only as provided under the wrongful death statute. The wrongful death statute in turn states that an action for damages resulting from the death of a person may be brought "[i]f the death of a person is caused by the wrongful act or omission of another," and then only "if the [decedent] might have maintained the action had he or she lived."2 Clearly, this statute does not permit an action to recover damages resulting from the death of a person unless that death has already been caused and the person no longer lives. Furthermore, the wrongful death statute authorizes recovery by one or more of "the heirs at law of the deceased who has sustained a loss by reason of the death."3 This section likewise contemplates that the person whose death has resulted in damages must be "deceased," in that the plaintiffs must have already "sustained a loss by reason of the death." Such circumstances cannot exist unless the person whose death allegedly caused the damages sought no longer lives.

Several corollary rules also affect this recovery. These corollaries concern the rules of standing and the "real party in interest" rule. These rules preclude one person from asserting a cause of action that belongs to another. The principle of standing requires that the plaintiff allege "[s]uch a personal stake in the outcome of a controversy as to warrant the invocation of jurisdiction and justify exercise of the court's remedial powers on his or her behalf."4 Similarly, section 60-217(a) of the Kansas statutes requires that actions be brought by the "real party in interest."5 Under this rule, an action must be "prosecuted in the name of the party who, by the substantive law, has the right sought to be enforced."6 Courts also have stated that under the "real party in interest" rule, the proper plaintiff is "the one entitled to the fruits of the action."7

By virtue of the instruction applied by the trial court, the plaintiff was allowed to enforce a "right" to recover for damages resulting from the plaintiff s death. However, any right to recover damages resulting from the death of a person is governed exclusively by the wrongful death statute, under which such right belongs solely to the deceased person's heirs at law.

The Kansas wrongful death statute "creates a right of action for damages for death by wrongful act which did not exist at common law and which does not obtain in the absence of such act."8 To the extent that the wrongful death statute imposes limitations on the right to bring an action for damages caused by the death of a person, such limitations are "imposed upon the exercise of the right of action granted."9 As the Kansas courts further note, "[w]rongful death actions were unknown at common law, and any right of action surviving the decedent exists by virtue of statutory enactment."10 Therefore, the damages recoverable in a wrongful death action are limited to losses suffered because of the death by those persons specified in the wrongful death statute."

With regard to the wrongful death statute, the Kansas court also has adopted the following corollary:

In all likelihood, it would be impossible to draft a statute which would be fair to all persons in all cases. The legislature has spoken, however, by enacting the present statutes, and it is not the role of this court to speculate on possible improvements therein.12

The Kansas wrongful death statute provides that, if an action for damages resulting from death can be brought at all, it may be brought "by any one of the heirs at law of the deceased who has sustained a loss by reason of the death."13 As the Kansas courts have recognized, this statute creates a wrongful death action which "is for the exclusive benefit of the heirs."14 The courts also have observed that, "[t]he action may be brought only by an heir of the decedent 'who has sustained loss by reason of the death.'"15

It is clear that the trial court's instructions in this case permitted recovery of damages resulting from the death of the plaintiff. However, it is also clear that, under the Kansas wrongful death statute, no one may bring an action to recover damages for the death of the plaintiff, except the plaintiff's "heirs." Therefore, the plaintiff who was ultimately misdiagnosed lacked standing and was not the "real party in interest" to assert any claim for such damages.

The trial court's instructions were erroneous for an additional related reason. As noted above, the Kansas wrongful death statute only permits "heirs at law" to recover damages resulting from a person's death, and only permits the recovery of damages sustained by such "heirs at law." Under the trial court's instructions in this case, the plaintiff was permitted to recover damages that would be sustained as a result of his death as well as damages sustained by his wife and children. However, because the plaintiff was not yet dead, and because any one or more of such persons might predecease him, these persons did not constitute the plaintiff's "heirs at law." As used in the wrongful death statute, an "heir at law" is a person who succeeds to the deceased's estate by way of intestate succession.16 The term "heir at law" thus has the same meaning as the term "heir."17 "It is settled law in Kansas that a living person can have no heirs."18

Under the circumstances, then, the plaintiff not only was allowed to assert claims that did not belong to him, he was permitted to assert claims that did not even belong to those persons on whose behalf he was permitted to recover. The instructions also permitted him to recover damages that might never be recoverable under the wrongful death statute, since he was permitted to recover damages sustained by persons who might never become "heirs at law."

Second, by attempting to submit both the plaintiff's personal injury damages and a separate line item award for the plaintiff's family (spouse and adult children), the plaintiff had sought to submit a hybrid spousal consortium and "kid consortium" claim which allowed future economic and non-economic damages allegedly sustained by the family. Under Kansas law, the spouse has a derivative claim for loss of consortium. The measure of damages for a derivative consortium claim is virtually identical to the elements recoverable under the wrongful death statute, with the notable exceptions of grief, bereavement, and funeral expense. Because the claim is deemed to be derivative of the plaintiff's claim, however, the spouse is not named as a party plaintiff. The consortium claim is merely submitted as a special line item within the verdict form of plaintiff's claim.

With regard to the "kid consortium" claim, there are no reported Kansas cases that recognize the right of an adult child to make a claim for consortium-type damages in a personal injury action. It is only in the event a wrongful death action is filed that the emancipated children have a claim as part of the class of claimants who have a right of recovery. However, even under the wrongful death statute, a "class representative" files an action on behalf of the decedent's heirs such that the children are never named as party plaintiffs to the lawsuit, and only one lineal descendant is named as the party plaintiff. Yet, as noted above, the only plaintiff was the patient himself.

The defendant objected to including any reference to the plaintiff's children, since no claim was asserted by the children in the plaintiff's petition or pretrial order. Defendant argued that any claim for "kid consortium" should be rejected on the basis that "kid consortium" was not recognized as a derivative claim on the same basis as the spousal consortium claim. Because the plaintiff's children were not parties to the action and the "kid consortium" claim was not pled, the defense claimed it was error to permit inclusion of the children on any verdict form since to do so would prejudicially increase the size of the verdict. Including the children's claim would improperly allow the jury to award damages to each of the five adult children who were non-parties to the lawsuit and had no standing to assert a claim at common law or by operation of statute.

The defendant's third objection argued that permitting the use of instructions which allowed submission of the wrongful death measure of damages resulted in an award of damages for future injuries which the plaintiff's wife or children had not yet sustained. These sought compensation for grief and bereavement upon death, funeral expenses, and loss of society, companionship and services. Clearly, until the plaintiff died, damages were purely speculative, unsupported by any evidence adduced at trial that the spouse or the children would suffer a demonstrable loss under the wrongful death statute. For example, given that the plaintiff was diagnosed as a terminal cancer patient before trial, the plaintiff's spouse or children emotionally might accept his impending death over the next six to eight months of his life. Under those circumstances, their grief and bereavement would be vastly different in the future than their actual trial testimony about how their father's terminal illness had historically or presently harmed them.

Another example of the speculative nature of the plaintiff's damages concerned the fact that the plaintiff's spouse or one or more children might predecease him due to accident or injury during the course of his shortened life expectancy. As a result, the spouse and children would not be entitled to recover damages upon the plaintiff's death. In effect, the instructions permitted an award to the family for future economic and non-economic loss based on family testimony about past and present emotional harm. The jury was given a roving commission to speculate about how one or more family members would be "in jured" in the future at the time of the plaintiff's death.

At trial, the plaintiff contended that an award of damages under the theory reflected in the instructions was appropriate, not just because the plaintiff's life-expectancy had been shortened, but because the plaintiff's death was "imminent." However, nothing in the trial court's instructions required such a finding. Instead, those instructions only required the jury to find that the defendant's negligent conduct diminished the plaintiff's life expectancy.

Consequently, the theoretical basis for the claim submitted in this case was simply that any plaintiff is entitled to recover (on behalf of his family) damages resulting from any diminution in the plaintiff's life expectancy. Such a theory would allow recovery whenever there is any evidence (presumably, through expert testimony) that the plaintiff's normal life expectancy has been shortened to any extent - even if the plaintiff's anticipated death is not expected to occur until many years into the future.

By virtue of their fourth objection, the defendants argued that submission of such a measure of damages would introduce a dangerous precedent for future cases by permitting speculative and highly prejudicial testimony to support such a claim. For example, such a claim could be asserted by any plaintiff who alleged that the addictive properties of cigarette smoke, or advertising by cigarette companies, caused him or her to smoke cigarettes. Having smoked cigarettes for even a short period of time, the plaintiff's life expectancy would be diminished. Under such facts, the instant theory of recovery would apply even if a plaintiff's life expectancy was diminished for as little as three to five years.

In such a case, a plaintiff could assert a right of recovery so long as he or she could produce any expert testimony purportedly stating to a reasonable degree of certainty that the plaintiff's life expectancy had been shortened. This right to recovery would exist, notwithstanding the clearly speculative nature of any expert testimony designed to predict, decades in advance, when a particular plaintiff would have died (but for the defendants' conduct), or when a particular plaintiff would die (as a result of the defendants' conduct). Such testimony necessarily would be speculative, given that there are an infinite number of factors that might shorten or lengthen a plaintiff's life span (with or without the impact of a defendants' negligence). The possibility of obtaining a recovery under such a theory might tempt expert witnesses hired by the plaintiff to "stretch" their actual capabilities as experts in order to support a plaintiff's right to recover otherwise speculative damages.

As a fifth objection, defendant argued that because the plaintiff's evidence could not possibly prove the nature and extent of damages that would be sustained upon his death, the jury instructions were not supported by substantial and competent evidence. Therefore, they could not be submitted to the jury. Stated differently, the plaintiff's evidence only proved the fact of emotional injury occurring in the past or present. No proof was offered (or could be offered) regarding non-economic harm which might occur at the time of the plaintiff's future death.

Finally, the proffered instructions could erroneously permit double recovery of damages because of the overlapping measure of damages. The instructions at issue attempted to carefully define the relevant time period for each category of damages. For example, a living plaintiff could recover loss of earnings from the date of diagnosis until the plaintiff's anticipated date of death. The wife and adult children would be allowed to make a claim for loss of financial support once the plaintiff died. Absent specific language in the instructions, the jury conceivably could award the same damages twice - once to the living plaintiff and again to the family.

The plaintiff argued that the wrongful death submission and the instructions were appropriate for largely equitable reasons. Denying the claims of spouse and family members would forever bar their right to collect damages. To that end the plaintiff cited Kansas law requiring that any claim arising out of medical malpractice must be filed within four years of the date that the injury was discovered. Because the plaintiff was not expected to die until after expiration of the four-year statute of repose, the plaintiff argued that the family unjustly would be denied the right to seek compensation arising from the nearly certain death of their father.

The defense responded that the plaintiff was improperly seeking "extra legislative" relief. If the plaintiff did not like the effect of the four-year statute of repose (already constitutionally valid), his relief should be directed to the legislature rather than the court, from which he sought an unsupported equitable decision.

Despite their logic, defendants' objections to the instructions were overruled. The jury was instructed on the wrongful death measure of damages and returned a net verdict of approximately $1 million to the plaintiff and his family. Over half of the award was made to the plaintiff's family - persons who were never parties to the lawsuit - for damages they had not yet sustained, based upon a theory of recovery that was not pled, proven, or recognized under Kansas law.

Similar cases that permit this patently absurd result are rare. Roers v. Engebretsonm is the only published decision which could be located. In Roers, the plaintiffs challenged a physician's delay in diagnosing breast cancer. At trial, the living plaintiff was allowed to submit a claim for her spouse's past and future loss of consortium damages. When the jury made both awards, the defendant appealed the award of future consortium damages. The issue as framed by the Roers court is instructive: Where an injured party is not expected to live long after trial of a common law negligence action, must the injured party's spouse bring a wrongful death action to recover damages for future loss of consortium resulting from the shortening of the injured party's life expectancy by the injury?20

In a tersely worded opinion, the appellate court rejected the defendant's argument that any claim for loss of future consortium resulting from the plaintiff's death was recoverable only in a statutory wrongful death action. Based on fairly constrained reasoning, the Roers court concluded that the Minnesota wrongful death statute was remedial in nature because a statutory cause of action for wrongful death was intended to correct a common law inequity permitting claims for personal injury, but not wrongful death. While the court initially acknowledged that "the first requirement for applying the wrongful death statute is that the injured person in fact be dead," the court thereafter determined that "to force a party to wait until the injured party's death to bring suit is inconsistent with the remedial purpose of the wrongful death statute."21

The Roers court ultimately concluded that requiring a wrongful death action was inconsistent with Minnesota law as applied to future loss of earnings due to death. It reasoned that a plaintiff was entitled to damages for loss of future earnings resulting from a reduction in the number of years of the plaintiff's earning capacity caused by an injury. It then determined, with no cogent reasoning, that simply because the plaintiff was entitled to recover for loss of future earnings, the spouse somehow had a common-law right to future consortium.

The Roers court itself suggested its own dichotomy, noting that its reasoning was contrary to the statutory directive that death is a precondition to filing a claim for damages which arise solely out of death. Moreover, simply because a living plaintiff has a right to future loss of earnings does not logically address the spouse's ability to receive future loss of consortium damages that only arise following the death of the plaintiff's spouse. Therefore, the recovery of such damages should be restricted to a statutorily based wrongful death action.

Clearly, there are cases nationally which recognize the right to recover lost future economic benefits sustained by the plaintiff if such damages can be proven with some degree of certainty. However, these cases do not address a situation where the court bootstraps general principles of damage recovery, allowing the plaintiff's future economic loss to permit the submission of a separate and unaccrued claim for wrongful death damages that may be incurred by spouses and family members in the future.

The case described here is presently on appeal to the Kansas Supreme Court. At the risk of dismissing this enigma as a fluke which could not occur in the future, it is important to note that at least three attempts have been made in Kansas jurisdictions (for which at least two jury verdicts were returned) to allow the wrongful death measure of damages for a terminally ill plaintiff and his family. Consequently, while this is clearly a novel attempt to bolster damages, some degree of caution should be exercised. Given the proclivities of the plaintiffs' bar, such cases are likely to surface in other jurisdictions in the future.

The principal defenses to such claims are outlined above in the body of this article. With few exceptions, most states have a statute (or case law) that governs wrongful death claims and requires that damages occur as a result of death before recovery is allowed.22 Clearly, the most disturbing aspect of such an anticipatory wrongful death claim is the plaintiff's utter inability to submit competent and substantial evidence of future damages. For this reason, objections noting lack of foundation and speculation are well founded.

[dagger] Submitted by the author on behalf of the FDCC Trial Tactics, Practice and Procedures Section.

1 Goldsmith v. Learjet, Inc., 917 P.2d 810, 821 (Kan. 1996).

2 KAN. STAT. ANN. § 60-1901 (2003).

3 Id. § 60-1902.

4 Varney Bus. Serv., Inc. v. Pottroff, 59 P.3d 1003, 1012 (Kan. 2002).

5 Id. at 1013 (citing KAN. STAT. ANN. § 60-217(2)).

6 Id.

7 Ryder v. Farmland Mut. Ins. Co., 807 P.2d 109, 118 (Kan. 1991 ) (quoting Torkelson v. Bank of Horton, 491 P.2d 954, 957 (Kan. 1971)).

8 Goldsmith v. Learjet, Inc., 917 P.2d 810, 821 (Kan. 1996).

9 Id.

10 Kleibrink v. Mo.-Kan.-Tex. R.R. Co., 581 P.2d 372, 378 (Kan. 1978) (quoting Thomas v. Cumberland Operating Co., 569 P.2d 974, 976 (Okla. 1977)).

11 Id.

12 Johnson v. McArthur, 596 P.2d 148, 153-54 (Kan. 1979).

13 KAN. STAT. ANN. § 60-1902 (2002).

14 Davidson v. Denning, 914 P.2d 936, 942 (Kan. 1996).

15 Id. (quoting KAN. STAT. ANN. § 60-1902) (emphasis added).

16 McArthur, 596 P.2d at 152-53.

17 Id.

18 Stalcup v. Detrich, 10 P.3d 3, 7 (Kan. Ct. App. 2000).

19 479 N.W. 2d 422 (Minn. Ct. App. 1992).

20 Id. at 423.

21 Id.

22 See generally KAN. STAT. ANN. § 60-1901 (2003).

Gregory P. Forney is a partner with Shaffer, Lombardo, Shurin in Kansas City, Missouri and Overland. Park, Kansas. His practice is focused on the defense of professional malpractice cases and complex commercial litigation. Mr. Forney extends his thanks to Charles H. Stitt and Kent Forney for their research and comments.

Copyright Federation of Defense & Corporate Counsel, Inc. Winter 2004
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