Anticipatory Wrongful Death Damages:
A Visit to
Gregory P.
Forney
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.[11]
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 “injured” 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. Engebretson[19]
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.
APPENDIX
IN THE DISTRICT COURT OF , KANSAS
Plaintiff
vs. Case No.
Defendant
JURY INSTRUCTIONS
The following jury instructions are to be used in the trial of this action:
DATED this day of , 200 .
HONORABLE
District Court Judge
INSTRUCTION NO.
The plaintiff, , claims he sustained damages due to the negligence of defendant.
a. In failing to obtain a tissue diagnosis (biopsy of lung nodules) or section said nodules following the 11/15/96 lung CT scan;
b. In failing to obtain a follow-up lung CT scan after the 11/15/96 lung CT scan;
c. In failing to follow-up with the patient after 2/17/97 chest x-ray;
d. In relying on the results of the 2/17/97 chest x-ray; or
e. In failing to review the 2/17/97 chest x-ray following 11/15/96 lung CT scan.
The plaintiff has the burden to prove that it is more probably true than not that he sustained damages as a result of one or more of the claimed negligent acts or omissions of the defendant. The plaintiff has the burden to prove that it is more probably true than not that he will die prematurely as a result of one or more of the claimed negligent acts or omissions of the defendant. Agreement as to which specific negligent act or omission is not required.
The defendant has admitted to acting below the standard of care as set forth above in Paragraphs “a” through “e.” You need only decide if defendant’s failure to comply with the standard of care resulted in damages to the plaintiff from this occurrence. In the event you find that defendant’s failure to comply with standard of care caused damages you should determine what damages plaintiff should be awarded.
The defendant denies that the plaintiff was damaged to the extent claimed.
INSTRUCTION NO. ______
In determining the amount of damages sustained by [the defendant] you should allow the amount of money which will reasonably compensate [the plaintiff] for injuries and losses resulting from the misdiagnosis of cancer. The amount of damages you determine should include any of the following shown by the evidence:
Non-economic
a. pain, suffering, disabilities, or disfigurement, and any accompanying mental anguish suffered by [the plaintiff] to date and those he is reasonably expected to experience in the future.
Economic
a. The reasonable expenses of necessary medical care, hospitalization and treatment received and of those reasonably expected to be needed in the future.
b. Loss of time or earning capacity by reason of [the plaintiff’s] disabilities resulting from cancer from September, 1998 until his death.
In determining the amount of damages, you should consider, [the plaintiff’s] age, condition of health before and after, and the nature, extent and duration of the injuries. For such items as pain, suffering, disability, and mental anguish, there is no unit value and no mathematical formula the court can give you. You should allow such sum as will fairly and adequately compensate [the plaintiff]. The amount to be allowed rests within your sound discretion.
INSTRUCTION NO. _____
In interpreting and applying the last instruction, there are three types of damages that you may allow:
1. Non-economic loss. This type of damage includes (a) pain and suffering and (b) disability, disfigurement and any accompanying mental anguish suffered by plaintiff to date (and those [the plaintiff] is expected to experience in the future).
2. Medical expenses. This type of damage includes the reasonable expenses of necessary medical care, hospitalization and treatment received (and of those reasonable expected to be needed in the future).
3. Economic loss. This type of damage includes loss of time or income to date by reason of [the plaintiff’s] aggravated medical condition (and that which [the plaintiff] is reasonably expected to lose in the future, up to the date of his death).
You will be given a verdict form in which you must itemize the amounts of non-economic, medical, and economic damages awarded to date and those awarded for future injuries and losses.
INSTRUCTION NO. ______
If you find for [the plaintiff] you may award a sum which will constitute fair and reasonable compensation for the loss and impairment of [the plaintiff’s] ability to perform services as a husband to his wife resulting from his misdiagnosed cancer, during his actual life.
In arriving at the amount of recovery, you will take into consideration the loss and impairment of [the plaintiff’s] services to his wife in the discharge of his domestic and household duties, and the loss and impairment of [the plaintiff’s] companionship, aid, assistance, comfort and society to his wife.
INSTRUCTION NO. _______
In determining the amount of damages sustained by the family of [the plaintiff] you should allow the amount of money which will reasonably compensate them for the damages resulting from the premature death of [the plaintiff]. The amount of damages you determine should include any of the following shown by the evidence.
1. Non-economic loss. This type of damage includes: a) mental anguish, suffering or bereavement, and b) loss of society, comfort, or companionship, which you find will be sustained by the family of [the plaintiff] because of the premature death of [the plaintiff]. For these items of damage there is no unit value and no mathematical formula the court can give you. You should allow an amount which you find to be fair and just under all of the facts and circumstances.
2. Economic loss. This type of damage includes:
a) Loss of services, attention, marital care, advice, counsel and protection he would have provided to his wife and children; and
b) Loss of income you find [the plaintiff] would have provided to his wife; and
c) Loss of household services he would have provided to his wife.
For items 2(a), (b) and (c), you should allow an amount which you believe to be equivalent to the monetary benefits or compensation the family of [the plaintiff] could reasonably have expected to receive from [the plaintiff] during his previous anticipated life expectancy.
You will be given a verdict form in which you must itemize the amount of non-economic damages and economic damages, as set forth above.
INSTRUCTION NO. ______
In interpreting these instructions, it may help you to keep the following things in mind:
Your first obligation is to determine if Defendant is at fault.
Next, determine the amount of damages sustained by [the plaintiff] and the family of [the plaintiff]. Keep in mind that in setting forth damage amounts on your verdict form, you set out the full damage sustained by that party.
The individuals you may find sustained damages are: [wife] and [children].
INSTRUCTION NO. ______
According to life expectancy tables, the life expectance of a white male person 59 years of age is 19.7 years.
This figure is to assist you in determining the probable life expectancy of [the plaintiff] as it bears on his future losses and damages. It is not conclusive proof of his life expectancy, and you are not bound by it. It is only an estimate based on average experience. You may find that [the plaintiff] probably would have lived a longer or shorter period than that given in these tables. This figure should be considered by you along with evidence of the health, physical condition, habits, occupation, and other circumstances bearing upon his life expectancy.
VERDICT FORM
We, the jury, impaneled and sworn in the above entitled case, upon our oaths, do make the following answers to the questions propounded by the court:
1. What damages, as defined in Instructions No. __, __ and __, do you find were sustained by [the plaintiff due to Defendant[‘s] admitted negligence in acting below the standard of care?
Non-economic loss to date $ 33,700.00
Future non-economic loss $ 35,380.00
Past medical expenses $ 220,767.40
Future medical expenses $ 102,700.00
Loss of time or earning capacity $ 10,000.00
from September, 1998 until his death
Past loss of household services $ 18,000.00
from September, 1998 until his death
TOTAL DAMAGES
SUSTAINED BY [the plaintiff] $ 420,547.40
2. Do you believe that, as a result of Defendant’s admitted negligence, [the plaintiff] will die a premature death?
X Yes No
(If “yes,” proceed to question 3)
3. What damages, as defined in Instruction No. 16, do you find that family will suffer due to Defendant’s admitted negligence in acting below the standard of care?
Non-economic loss $ 600,000.00
Economic loss $ 349,005.00
TOTAL DAMAGES
SUSTAINED BY [the plaintiff’s] FAMILY $ 949,005.00
Agreement on each of the above questions was by ten or more jurors.
X Yes No
Presiding Juror
ENDNOTES
