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MEMORANDUM
TO:
File, XXXXXX v. XXXXXXXXXX
FROM:
Dustin P. Reichard
DATE:
April 27, 2009
SUBJECT:
Damages Recoverable Under WA's Survival and Wrongful Death Statutes
FILE NO.:
XXXXXXXX
Executive Summary
Claimant in this matter, the Estate of XXXXXX, is seeking special and general damages
in the total amount of $794, 615.13. Potential damages in this case are governed by
Washington’s survival and wrongful death statutes. The following memorandum discusses the
damages claimant is entitled to recover under each of these statutes. Given Ms. XXXXXX’s
potential beneficiaries, it appears that recovery would be limited to a claim under Washington’s
general survival statute. Further, there would be no viable claim for general damages, and
recovery under the general survival statute would be limited to special damages (i.e., medical
specials of $94, 615.13).
Statement of Facts
On April 28, 2008, XXXXXX presented to Mid-Valley Hospital for rotator cuff surgery.
Ms. XXXXXX was 48 years old at the time. In the course of this procedure, Ms. XXXXX went
into a coma after the certified registered nurse anesthetist injected epinephrine instead of
dexamethasone. Ms. XXXXXX was soon thereafter flown to Central Washington Hospital
(CWH) via helicopter. She remained at CWH for seven days, in a comatose state, until her death
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on May 5, 2008. The doctor described Ms. XXXXXXX’s circumstance as having sustained
severe irreversible anoxic brain injury after prolonged resuscitation efforts.
On March 26, 2009, counsel for Ms. XXXXXXX’s estate sent a demand letter to MidValley Hospital. According to this letter, the estate was seeking compensation in the total
amount of $794, 615.13. This figure includes both special damages, in the amount of $94,
615.13,1 and general damages, in the amount of $700,000.2 Ms. XXXXX’s surviving family
includes a sister and niece in Pomeroy, WA and a father in Brewster, WA, none of whom appear
to have been financially dependent upon Ms. XXXXX at the time of her death.
Issue Presented
What damages may Ms. XXXXXX’s estate reasonably recover under Washington’s
survival and wrongful death statutes?
Discussion
Washington has several statutes that potentially could provide recovery for the alleged
wrongful death of a person. These statutes include: the wrongful death statute (codified in RCW
4.20.010 and 020), the special survival statute (codified in RCW 4.20.060), the child death
statute (codified in RCW 4.24.010), and the general survival statute (codified in RCW 4.20.046).
Ms. XXXXXX’s estate will likely not be able to recover damages under RCW 4.20.010 – 020,
RCW 4.20.060, or, RCW 4.24.010 because there are no “statutory beneficiaries” as defined by
1 Special damages were calculated on the basis of incurred medical expenses. The figure of $94,615.13 includes:
$8, 132.28, due to costs incurred from Northwest MedStar Air Ambulance; and, $86, 482.85, due to costs incurred
from CWH.
2 General damages were calculated based on the general survival statute. Ms. XXXXXX’s estate asserts that, under
this statute, it is entitled to the unconscious pain and suffering that Ms. XXXXXX experienced while in a coma for
the seven days from the date of the epinephrine injection to the date of her demise. The estate estimates that Ms.
XXXXXX’s unconscious pain and suffering amounted to $100,000 per day for a total damage figure of
$700,000. Alternatively, the estate asserts that, due to the alleged erroneous injection, Ms. XXXXX lost
approximately 35 years of the enjoyment of her life, with one year of life valued at $20,000 for a total general
damage figure of $700,000.
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these statutes. Ms. XXXXXX’s estate could recover damages under RCW 4.20.046; however,
this recovery would likely be limited to only special damages.
A.
The Estate’s Inability To Recover Under RCW’s 4.20.010 – 020, 4.20.060,
and 4.24.010.
1.
Wrongful Death Statute.
RCW 4.20.010 and 020 set out the statutory authority for a wrongful death claim in
Washington. RCW 4.20.010 provides that the personal representative may maintain an action
for damages against a person wrongfully causing a death. RCW 4.20.020 then provides that this
wrongful death action:
…shall be for the benefit of the wife, husband, child or children, including
stepchildren, of the person whose death shall have been so caused. If there be no
wife or husband or such child or children, such action may be maintained for the
benefit of the parents, sisters or brothers, who may be dependent upon the
deceased person for support, and who are resident within the United States at the
time of his death.
RCW 4.20.020 (emphasis added). Thus, beneficiaries under the statute are either (a) the spouse
or children of the decedent, or, if there are none, then (b) the parents or siblings dependent upon
the deceased for support. Causes of action for wrongful death are strictly a matter of legislative
grace and are not recognized in the common law. Tait v. Wahl, 97 Wn. App. 765, 130, 987 P.2d
127 (1999).
2.
Special Survival Statute.
RCW 4.20.060, Washington’s special survival statute, allows the executor or
administrator of a decedent’s estate “to recover for the decedent’s damages, including any pain
and suffering between the time of the injury and the time of death.” Bowers v. Fibreboard Corp.,
66 Wn. App. 454, 460, 832 P.2d 523 (1992). Although RCW 4.20.060 is a survival statute
because it continues “the cause of action of the decedent for the damages which the decedent
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could have claimed had the death not occurred, “ damages recovered under RCW 4.20.060 “do
not go through the estate, but are distributed directly to the statutory beneficiaries.” Parrish v.
Jones, 44 Wn. App. 449, 455, 722 P.2d 878 (1986); see also 15 Lewis H. Orland & Karl B.
Tegland, Wash. Prac., Trial Practice Civil § 597, at 384 (5th ed. 1996). Like Washington’s
wrongful death statute, RCW 4.20.060 expressly limits statutory beneficiaries to the two tiers of
beneficiaries listed in RCW 4.20.020. Philippides v. Bernard, 151 Wn.2d 376, 385, 88 P.3d 939
(2004); Benoy v. Simons, 66 Wn. App. 56, 61, 831 P.2d 167 (1992).3
3.
Death of Child Statute.
RCW 4.24.010, Washington’s child death statute, creates a cause of action in favor of
parents for the injury or death of their minor children, 4 or adult children upon whom they are
dependent for support. The statute provides in relevant part as follows:
A mother or father, or both, who has regularly contributed to the support of his or
her minor child, and the mother or father, or both, of a child on whom either, or
both, are dependent for support may maintain or join as a party an action as
plaintiff for the injury or death of the child.
RCW 4.24.010 (emphasis added). Parents who are not financially dependent on their child
cannot recover under this section, and the “dependence” requirement does not encompass
3 RCW 4.20.060: “No action for a personal injury to any person occasioning death shall abate, nor shall such right
of action determine, by reason of such death, if such person has a surviving spouse, state registered domestic
partner, or child living, including stepchildren, or leaving no surviving spouse, state registered domestic partner, or
such children, if there is dependent upon the deceased for support and resident within the United States at the time
of decedent's death, parents, sisters, or brothers; but such action may be prosecuted, or commenced and prosecuted,
by the executor or administrator of the deceased, in favor of such surviving spouse or state registered domestic
partner, or in favor of the surviving spouse or state registered domestic partner and such children, or if no surviving
spouse or state registered domestic partner, in favor of such child or children, or if no surviving spouse, state
registered domestic partner, or such child or children, then in favor of the decedent's parents, sisters, or brothers
who may be dependent upon such person for support, and resident in the United States at the time of decedent's
death.” (emphasis added).
4 A “minor” for purpose of this statute is someone under the age of 18. See RCW 26.28.010; Burt v. Ross, 43 Wn.
App. 129, 715 P.2d 538 (1986).
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emotional dependence. Masunaga v. Gapasin, 57 Wn. App. 624, 628, 790 P.2d 171 (1990);
Philippides, supra, 151 Wn.2d at 388.
4.
Analysis of above statutes.
A condition precedent to the maintenance of an action under each of the above statutes is
establishing the existence of statutory beneficiaries noted in the statutes. See Warner v.
McCaughan, 77 Wn.2d 178, 185, 460 P.2d 272 (1969). In Warner, the Washington Supreme
Court dealt with a case similar to this one, where the parents brought suit for the death of their
adult daughter. In upholding the dismissal of the parents’ claims, the court noted: “The statutes
[RCW 4.20.010 – 020 and 060] create the right of action and define those entitled to their
benefits. The requirement of beneficiary status is express; the condition precedent to status is
dependency. Plaintiffs do not meet this test.” Id, at 185. The court in Masunaga, supra, 57 Wn.
App. at 628, similarly held that establishing financial dependence is a condition precedent to
maintaining an action under RCW 4.24.010.
The latter issue was again recently addressed in Philippides, supra, 151 Wn.2d at 388. In
that case, Washington’s Supreme Court addressed the issue of whether dependence, under RCW
4.24.010, was limited to financial dependence, or also included emotional or psychological
dependence. The Court held that RCW 4.24.010’s “dependent for support” language meant what
it had traditionally had meant, which is financial dependence. The Court considered the statute’s
legislative history and concluded that a recent amendment did not allow non-financially
dependent parents to sue for the death of their adult children.5
5
While the Philippides court addressed the issue of financial dependence in the context of RCW 4.24.010, the
court’s holding would seem to apply equally to Washington’s wrongful death statute and survival statutes. In
rejecting the plaintiff’s more generalized interpretation of dependency, the Court noted that such an interpretation
would only “create disharmony in Washington’s statutory wrongful death and survival statutory scheme.” Id, at
385-386. The Court went on to add: “Washington’s four interrelated statutory causes of action for wrongful death
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Here, Ms. XXXXXX had no spouse or child at the time of her death, and her father and
sister were apparently not dependent upon her for financial support. Thus, Ms. XXXXXX’s
estate fails to include any type of statutory beneficiary noted in the above statutes. Absent some
proof of financial dependence, the estate therefore has no cause of action under any of the
statutes. The only remaining statute under which a claim may be brought is the general survival
statute, RCW 4.20.046.
B.
The Estate’s Limited Recovery Of Damages Under The Survival Action Of
RCW 4.20.046.
RCW 4.20.046, as amended in 1993, permits those claims for personal injury which a
decedent had during his or her lifetime to be brought by the personal representative of the estate
on behalf of the estate and, for certain items, on behalf of the wrongful death beneficiaries. The
statute provides in relevant part:
All causes of action by a person or persons against another person or persons shall
survive to the personal representatives of the former and against the personal
representative of the latter, whether such actions arise on contract or otherwise,
and whether or not such actions would have survived at the common law or prior
to the date of enactment of this section. Provided, however, That the personal
representative shall only be entitled to recover damages for pain and suffering,
anxiety, emotional distress, or humiliation personal to and suffered by a deceased
on behalf of those beneficiaries enumerated in RCW 4.20.020, and such damages
are recoverable regardless of whether or not the death was occasioned by the
injury that is the basis for the action…
RCW 4.20.046(1) (emphasis added). The highlighted portion above was added by the
Legislature in 1993, and created a significant change in the damages recoverable.
Under the previous version of the general survival statute, recovery for the decedent’s
pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by the
and survival each require that parent’s be ‘dependent for support’ on a deceased adult child in order to recover…The
phrase ‘dependent for support’ as used in these statutes has consistently been interpreted by the courts to mean
financial dependence. Id, at 386.
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deceased had been expressly prohibited. Instead, as one court noted, “[d]amages in a survival
action compensate the decedent’s untimely death.” Wagner v. Flightcraft, Inc., 31 Wn. App.
558, 567, 643 P.2d 906, (1982) (emphasis added). Thus, under pre-1993 law, only the following
were held to be recoverable damages: damages for disability with its attendant permanent loss of
earning power, burial and funeral expenses, medical and hospital expenses, and general damages
to the decedent’s estate. See Cacazos v. Franklin, 73 Wn. App. 116, 121-22, 687 P.2d 674
(1994).
With the amendment of the statute in 1993, it is clear that a personal representative can
now recover damages for pain and suffering, anxiety, emotional distress, and humiliation for the
benefit of the wrongful death beneficiaries enumerated in RCW 4.20.020, if such beneficiaries
exist. However, if no beneficiaries exist, no such damages are recoverable. This was recently
made explicit by the Washington Court of Appeals in Tait v. Wahl, 97 Wn. App. 765, 987 P.2d
127 (1999).
In Tait, decedent’s niece (Amber Tait), on behalf of herself, her children, decedent’s nondependent brother, and the decedent’s estate, sued the owner and driver of a delivery truck that
had struck and killed the decedent seeking damages for pain and suffering, medical expenses,
impairment of income earning capacity, loss of enjoyment of life, and loss of consortium. On a
motion for partial summary judgment by defendants, the trial court dismissed all claims brought
on behalf of anyone other than the estate, and all claims for noneconomic damage brought on
behalf of the estate. Id, at 128-129. On appeal, the Court of Appeals upheld the dismissal of
these claims:
Because Tait, her children, and the decedent’s non-dependent brother are not
beneficiaries under Washington’s wrongful death and survival statutes, RCW
4.20.010, .020, .046(1), .060, and the common law does not recognize a cause of
action against a person who wrongfully causes the death of another, the trial court
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properly dismissed, on summary judgment, the claims that Tait brought on behalf
of herself, her children, and the decedent’s nondependent brother. In addition,
because a decedent’s estate cannot recover noneconomic damages for the
decedent’s pain and suffering, anxiety, emotional distress, loss of enjoyment of
life, or loss of consortium under Washington’s general survival statute, RCW
4.20.046(1), the trial court also properly dismissed, on summary judgment, these
claims brought by Tait on behalf of the decedent’s estate.
Id, at 132 (emphasis added). While the Tait court was dealing with the former version of RCW
4.20.046, which expressly precluded recovery for noneconomic damages, it noted in a footnote
that it would have reached the same conclusion under the 1993 amendment to the statute because
plaintiff Tait was not among the beneficiaries listed in RCW 4.20.020. See Tait, 97 Wn. App. at
131 n.3.6
In essence, the only change the 1993 amendment made in the statute was to allow
recovery to the wrongful death beneficiaries for noneconomic damages suffered by the deceased,
regardless of whether the injury caused the death or not. The damages that actually flow to the
estate did not change: it can still only recover damages for monetary losses to be suffered by the
estate. As it made explicit by the legislative history to the statute, the primary purpose of the
amendment was to rectify the discrepancy of damages available under RCW 4.20.060, the
special survival statute, and 046, the general survival statute. Now, the wrongful death
beneficiaries (if any exist) can collect noneconomic damages suffered by the decedent under
either of these statutes.
The Tait court did spend time discussing the damages available under the general
survival statute. In rejecting plaintiff’s argument that even if the decedent’s estate could not
6 The Tait court makes it apparent that noneconomic damages are only recoverable by the two tiers of beneficiaries
enumerated in RCW 4.20.020, i.e., the spouse or children of the decedent, or if there are none, then the parents or
siblings dependent upon the deceased for support. It should be noted that given the holding in Philippides, supra,
151 Wn.2d at 388, the dependency requirement imposed upon the second tier of beneficiaries would seemingly only
encompass financial dependence, as opposed to emotional or psychological dependence.
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recover damages for the decedent’s pain and suffering, anxiety, emotional distress, or
humiliation, RCW 4.20.046(1) still permits a decedent’s estate to recover other noneconomic
damages such as the decedent’s loss of enjoyment of life and loss of consortium, the court
reasoned as follows:
The Supreme Court, however, has expressly held that a decedent’s estate’s right to
recover damages under RCW 4.20.046(1) is limited to the lost net accumulations of the
decedent:
The loss of life’s amenities should be recoverable only by plaintiffs who survive
compensable injuries, since such lost pleasures are personal to that individual and
essentially represent pain and suffering. Damages for loss of life’s amenities
should not be recoverable in a survival action, however, because such damages
are a back-door method of obtaining compensation for pain and suffering, or for
obtaining those damages otherwise recoverable in a wrongful death action. See
RCW 4.20.010, .020, and RCW 4.24.010. The proper method for determining
damages in a survival action as opposed to a wrongful death action, was set out in
Criscuola v. Andrews, 82 Wash.2d 68, 507 P.2d 149 (1973). In that case, we
stated that the potential for double recovery (not a problem here) can be avoided
“if recovery under the survival action is limited to the prospective net
accumulations of the deceased.” Criscuola, at 70. We believe that the loss of the
ability to enjoy life’s pleasures and amenities is not an asset to be accumulated by
the deceased.
Wooldridge [v. Woolett], 96 Wash.2d at 66, 638 P.2d 566; see also Cavazos, 73
Wash.App. at 121, 867 P.2d 674…Because the loss of enjoyment of life and loss of
consortium - - like pain and suffering, anxiety emotion distress, and humiliation - - are
not assets that can be accumulated by the decedent, a decedent’s estate cannot recover
damages for these claims under RCW 4.20.046(1).
Tait, 97 Wn. App. at 131-132. Given this reasoning, even under the current version of the
statute, noneconomic damages are still not recoverable to the estate (or even to the personal
representative in the absence of qualified statutory beneficiaries).
An examination of the Washington Supreme Court opinion in Wooldridge v. Woolett, 96
Wn.2d 659, 638 P.2d 566 (1981), makes this conclusion even more certain. In Wooldridge, the
court was faced with the question of whether a person’s shortened life expectancy was a
separately recoverable item of damages in a survival action under RCW 4.20.046. Id, at 660. In
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affirming the trial court and Court of Appeals that such an item is not recoverable, the court
noted (as quoted above) that the loss of ability to enjoy life’s pleasures and amenities is not an
asset to be accumulated by the deceased and is therefore not recoverable in a survival action. Id,
at 666. It went on to state: “We hold that shortened life expectancy is relevant in a survival
action only to the extent it affects the loss of value of a decedent’s future earning capacity.” Id,
at 667.
The Washington Supreme Court once again upheld the reasoning utilized in Tait and
Wooldridge in the relatively recent case of Otani v. Broudy, 151 Wn.2d 750, 92 P.3d 126 (2004).
In Otani, the court again faced the issue of noneconomic damages in a survival action and held
that post-death damages for loss of enjoyment of life were not recoverable by a decedent’s estate
under Washington’s survival statutes. As stated by the court: “Loss of enjoyment of life is not a
claim Ms. Otani could have brought had she survived because it is not a loss she experienced
during her life. Thus, the cause of action was not preserved for her estate.” In discussing the
legislative history behind the 1993 amendment, the court went on to state:
Additionally, the legislative history behind the 1993 amendment does not support
the argument that the legislature intended to expand causes of action under the
general survival statute to include postdeath damages for LOEL [loss of
enjoyment of life], nor does the legislative history indicate that damages for
LOEL are available to a decedent’s estate for a decedent who never experiences a
conscious awareness of their loss…The amended statute still requires that a
plaintiff consciously experience suffering in order to permit recovery…The
express language of the statute permits an estate to recover damages only for a
decedent’s conscious suffering prior to death and not for the decedent’s death
itself.
Id, at 760-761.
Here, Ms. XXXXX’s estate is limited to only those special damages available under
RCW 4.20.046. Because there are apparently no statutory beneficiaries who were dependent
upon Ms. XXXXXX for support, there can be no recovery for general, noneconomic damages
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that do not accumulate to the decedent. The above cases specifically disallow recovery for Ms.
XXXXX’s loss of enjoyment of life; and further, the ruling in Otani precludes recovery for Ms.
XXXXX’s alleged pain and suffering during the 7 days in which she was unconscious.7 Thus,
recoverable damages would be limited to provable economic loss, such as burial and funeral
expenses, disability with its attendant permanent loss of earning power, and medical and hospital
expenses.
In this case, it is our assumption that Ms. XXXXX was not gainfully employed (her
hospital bills were paid by Medicaid of Washington; she had been a recent user of
methamphetamine; the Mid-Valley Hospital chart indicates she was unemployed; we have no
information to suggest she recently had been gainfully employed; and, she had several risk
factors that would likely have shortened her work-life expectancy in any event per consultation
with our cardiology consultant, Dr. XXXXXX). This leaves only the medical and burial
expenses, which will be subject to a Medicaid lien.
Conclusion
Under Washington law, the only action available to Ms. XXXXXX’s estate is a survival
action under RCW 4.20.046. Because there are no statutory beneficiaries who were dependent
upon Ms. XXXXXX for support, Ms. Mehrling’s potential noneconomic losses are simply not
recoverable. Thus, any possible recovery under RCW 4.20.046 would be limited to provable
economic loss.
Ms. XXXXXX’s estate seeks compensation in the total amount of $794, 615.13. This
figure includes both special damages, in the amount of $94, 615.13, and general damages, in the
7 It is our understanding that Ms. XXXXX went into a coma at Mid-Valley Hospital and never recovered.
However, our records from CWH are not complete and it is (barely) conceivable that she regained consciousness for
a brief period of time.
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amount of $700,000. In light of the foregoing discussion, the estate’s general damages should be
disallowed leaving it entitled to recover only the amount of $94, 615.13, or the expenses incurred
for Northwest Medstar Air Ambulance and CWH.
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