What Damages Can You Seek in Wrongful Death Medical Malpractice Cases?

By Ben Gideon and Taylor Asen

Taylor Asen (left) & Ben Gideon

Medical malpractice claims involving patient deaths are subject to the limitations on damages prescribed by Maine’s Death Act. As most recently amended, the Death Act allows for the recovery of up to $750,000 to the statutory beneficiaries (the people closest to the decedent, according to our laws of intestacy) for “loss of comfort, society and companionship of the deceased, including any damages for emotional distress arising from the same facts as those constituting the underlying claim.” 18-A M.R.S.A. § 2-807(2). No matter how many loved ones are left behind, compensation for the emotional distress of the family is capped at $750,000. In addition, Maine’s Death Act allows for recovery of economic losses in an unlimited amount, as well as claims for punitive damages capped at $250,000. Id.

The Death Act also contains a savings clause, which explicitly allows the personal representative to bring any personal injury claims that the decedent may have brought (had she survived) for the period between the injury and eventual death. 18-A M.R.S.A. § 2-807(3) (explaining that wrongful death claim can be brought “in addition to the action at common law and damages recoverable therein”). The simplest way to think about the savings clause is this: if, rather than dying, the decedent had suddenly recovered, what claims would she be able to bring? 

There is confusion relating to how the damages permitted for wrongful death interact with the categories of damages allowed in so-called “survival” claims.  The confusion stems from § 2-807(3), which states as follows:

  1. Damages for conscious suffering. Whenever death ensues following a period of conscious suffering, as a result of personal injuries due to the wrongful act, neglect or default of any person, the person who caused the personal injuries resulting in such conscious suffering and death is, in addition to the action at common law and damages recoverable therein, liable in damages in a separate count in the same action for such death, brought, commenced and determined and subject to the same limitation as to the amount recoverable for such death and exclusively for the beneficiaries in the manner set forth in subsection 2, separately found, but in such cases, there is only one recovery for the same injury.  

The use of the term “conscious suffering” in this subsection is often interpreted to mean that, while a plaintiff may seek damages for pre-death pain and suffering, other types of damages arising from the pre-death period are barred. 

Prior to the inclusion of subsection 3, courts had held that only deaths that immediately followed an injury were cognizable as wrongful death actions. See, e.g., Hogue v. Roberge, 47 A.2d 727 (1946). This “immediacy” rule led to patently unfair outcomes: one who caused harm that resulted in death immediately would be subject to a wrongful death action, whereas another one who caused harm that led to a delayed death sometime later would not. 

In 1943, the Maine legislature decided to do away with this untenable “immediacy” requirement. It did so by enacting subsection 3, which makes clear that, if a death is not “immediate,” the family is entitled to bring both a wrongful death claim and a survival claim.

In short, subsection 3 was not intended to limit the categories of recoverable damages that the Estate may pursue related to the pre-death period. To the contrary, the savings clause in subsection 3 explicitly preserves those claims to their fullest extent.

What does this mean for wrongful death plaintiffs? It means that they should be entitled to pursue, in addition to claims for pre-death pain and suffering, other categories of damages permitted under Maine law for living claimants, including, among others, loss of enjoyment of life. The category can be particularly valuable in a wrongful death claim: a personal who dies after a week in a coma may not have experienced any conscious pain and suffering, but she nonetheless may have a viable claim for loss of enjoyment of life.

The Effect of Damages Caps on Medical Malpractice Claims

The damages caps imposed on death claims have a particularly invidious effect on medical malpractice actions. Because medical malpractice cases that result in death happen at a higher rate to those most vulnerable or elderly, it is common for these victims to be retired from the workforce and/or disabled. Thus, although economic loss claims are not capped, many medical malpractice plaintiffs do not have viable economic loss claims.

Medical malpractice claims are also much more time-consuming and expensive to litigate than other personal injury case. We assume that every medical malpractice case we litigate will require an expense budget of between $100,000 and $200,000, although many cases have expenses that go well beyond this. There are wrongful death cases where the cost of litigation outweighs the likely recovery. Moreover, if the family has no viable survival claims, the medical providers and their insurers will have little to fear with respect to a high verdict, and will be emboldened to litigate the claim aggressively. This drives the costs up higher.

The publication of this piece in full is excerpted from “Medical Malpractice: Wrongful Death,” published in Maine Lawyers Review on Feb 10, 2022.