Surgical Errors Causing Wrongful Death Are Common In Long Term Care Facilities

Surgical Errors can Cause Death and Ruin Families

The family of a California man who died after a hernia surgery has filed suit against their Medical Center and one of its surgeons for their parts in the man’s death, caused by a surgical error. In the suit, the family says the surgeon and one of his assistants failed to properly monitor the victim after surgery, and that he developed severe inflammation in his colon, which lead to his death six days after the surgery. The lawsuit is seeking unspecified damages. Damages for Wrongful Death can be substantial and may be calculated as follows:

1. The financial support, if any, that the decedent would have contributed to the family during either the life expectancy that decedent had before [his/her] death or the life expectancy of the Plaintiff whichever is shorter;
2. The loss of gifts or benefits that the Plaintiff would have expected to receive from the decedent;
3. Funeral and burial expenses; and
4. The reasonable value of household services that decedent would have provided.

Your award of any future economic damages must be reduced to present cash value.

Plaintiff may also claim the following noneconomic damages:

1. The loss of the decedent’s love, companionship, comfort, care, assistance, protection, affection, society, moral support; [and]
2. The loss of the enjoyment of sexual relations.
3. The loss of decedent’s training and guidance.

No fixed standard exists for deciding the amount of non economic damages.The Courts and juries are routinely requested to decide a reasonable amount based on the evidence.

In deciding a person’s life expectancy, you may consider, among other factors, the average life expectancy of a person of that age, as well as that person’s health, habits, activities, lifestyle, and occupation.

Sources and Authority

Code of Civil Procedure section 377.60 provides:  A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf:

1. The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.
2. Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents. As used in this subdivision, ‘putative spouse’ means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.
3. A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent’s death, the minor resided for the previous 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support.
4. This section applies to any cause of action arising on or after January 1, 1993.
5. The addition of this section by Chapter 178 of the Statutes of 1992 was not intended to adversely affect the standing of any party having standing under prior law, and the standing of parties governed by that version of this section as added by Chapter 178 of the Statutes of 1992 shall be the same as specified herein as amended by Chapter 563 of the Statutes of 1996.
6. For the purpose of this section, “domestic partner” has the meaning provided in Section 297 of the Family Code.

Code of Civil Procedure section 377.61 provides: “In an action under this article, damages may be awarded that, under all the circumstances of the case, may be just, but may not include damages recoverable under Section 377.34. The court shall determine the respective rights in an award of the persons entitled to assert the cause of action.”

“A cause of action for wrongful death is purely statutory in nature, and therefore ‘exists only so far and in favor of such person as the legislative power may declare.’ ” (Barrett v. Superior Court (1990) 222 Cal.App.3d 1176, 1184 [272 Cal.Rptr. 304], internal citations omitted.)

“There are three distinct public policy considerations involved in the legislative creation of a cause of action for wrongful death: ‘(1) compensation for survivors, (2) deterrence of conduct and (3) limitation, or lack thereof, upon the damages recoverable.’ ” (Barrett, supra, 222 Cal.App.3d at p. 1185, internal citation omitted.)

“We therefore conclude, on this basis as well, that ‘wrongful act’ as used in section 377 means any kind of tortious act, including the tortious act of placing defective products into the stream of commerce.” (Barrett, supra, 222 Cal.App.3d at p. 1191.)

“In any action for wrongful death resulting from negligence, the complaint must contain allegations as to all the elements of actionable negligence.” (Jacoves v. United Merchandising Corp. (1992) 9  Cal.App.4th 88, 105 [11 Cal.Rptr.2d 468], internal citation omitted.)

“Damages for wrongful death are not limited to compensation for losses with ‘ascertainable economic value.’ Rather, the measure of damages is the value of the benefits the heirs could reasonably expect to receive from the deceased if she had lived.” (Allen v. Toledo (1980) 109 Cal.App.3d 415, 423 [167 Cal.Rptr. 270], internal citations omitted.)

“The death of a father may also cause a special loss to the children.” (Syah v. Johnson (1966) 247 Cal.App.2d 534, 547 [55 Cal.Rptr. 741], internal citation omitted.)

“These benefits include the personal services, advice, and training the heirs would have received from the deceased, and the value of her society and companionship. ‘The services of children, elderly parents, or nonworking spouses often do not result in measurable net income to the family unit, yet unquestionably the death of such a person represents a substantial “injury” to the family for which just compensation should be paid.’ ” (Allen, supra, 109 Cal.App.3d at p. 423, internal citations omitted.)

The wrongful death statute “has long allowed the recovery of funeral expenses in California wrongful death actions.” (Vander Lind v. Superior Court (1983) 146 Cal.App.3d 358, 364 [194 Cal.Rptr. 209].)

“Where, as here, decedent was a husband and father, a significant element of damages is the loss of financial benefits he was contributing to his family by way of support at the time of his death and that support reasonably expected in the future. The total future lost support must be reduced by appropriate formula to a present lump sum which, when invested to yield the highest rate of return consistent with easonable security, will pay the equivalent of lost future benefits at the times, in the amounts and for the period such future benefits would have been received.” (Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512, 520-521 [196 Cal.Rptr. 82], internal citations omitted.)

“The California statutes and decisions . . . have been interpreted to bar the recovery of punitive damages in a wrongful death action.” (Tarasoff  v. Regents of the University of California (1976) 17 Cal.3d 425, 450 [131 Cal.Rptr. 14, 551 P.2d 334], internal citation omitted.) There is an exception to this rule for death by felony homicide for which the defendant has been convicted. (Civ. Code, � 3294(d).)

“Punitive damages are awardable to the decedent’s estate in an action by the estate representative based on the cause of action the decedent would have had if he or she had survived.” (Rufo v. Simpson (2001)  86 Cal.App.4th 573, 616 [103 Cal.Rptr.2d 492], internal citation omitted.)

“California cases have uniformly held that damages for mental and emotional distress, including grief and sorrow, are not recoverable in a wrongful death action.” (Krouse v. Graham (1977) 19 Cal.3d 59, 72 [137 Cal.Rptr. 863, 562 P.2d 1022], internal citations omitted.)

“[A] simple instruction excluding considerations of grief and sorrow in wrongful death actions will normally suffice.” (Krouse, supra, 19  Cal.3d at p. 69.)

“[T]he competing and conflicting interests of the respective heirs, the difficulty in ascertaining individual shares of lost economic support when dealing with minors, the lack of any reason under most circumstances to apportion the lump-sum award attributable to loss of monetary support where minors are involved, the irrelevance of the heirs’ respective interests in that portion of the award pertaining to lost economic support in determining the aggregate award, and the more efficient nature of court proceedings without a jury, cumulatively establish apportionment by the court, rather than the jury, is consistent with the efficient administration of justice.” (Canavin, supra, 148  Cal.App.3d at pp. 535-536.)

The PECK LAW GROUP specializes in personal injury matters relating to Medical Malpractice, Surgery errors, Wrongful Death that are determined to be a breach of the standard of care.    Our experts and our attorneys have superior knowledge and know how in handling these type of matters from inception to Trial if need be.  You will receive superior representation and of course the best possible result based upon our know how and expertise.  Call us Now!!!  THE PECK LAW GROUP In Southern California at (818) 908-0509; In Northern California at (925) 808-5708; or all across the United States toll free at (866) 909-9085.

– from Steven Peck, Senior Attorney at Peck Law Group