Is Once Enough?

Recovery For Wrongful Death After Settling An Underlying Personal Injury Or Medical Malpractice Claim.

By Ron Perey & Carla Tachau Lawrence
August 2001

Washington has a complex statutory scheme to compensate for tortious death, with 3 wrongful death statutes and 2 survival statutes. The wrongful death statutes generally provide a cause of action for the decedent’s surviving family members for losses they sustain as a result of the decedent’s death. The survival statutes preserve the decedent’s own cause of action for personal injury and death, permitting the action to proceed on behalf of the statutory beneficiaries and/or the decedent’s estate. Steve Andrews, Survivability of Noneconomic Damages for Tortious Death in Washington, 21 Seattle U. L. Rev. 625 (1998). But Washington law and the pattern jury instructions have left unanswered many of the questions raised by this complex scheme. We examine some of those questions here, through the following case study:

Jane Smith,[1] a dermatologist in her mid-30s, had false negative Pap smears in 1992 and 1994. She gave birth to her daughter Sara on March 19, 1995. A year after Sara’s birth, on March 6, 1996, Dr. Smith was diagnosed with metastatic cervical carcinoma, stage III-B.  On December 10, 1996, Dr. Smith and her husband filed a complaint for medical malpractice against the obstetricians who had misdiagnosed her, the clinic and the hospital where she had received negligent health care. On January 9, 1998, Dr. and Mr. Smith settled that action for $2.1 Million. On January 16, 2000, after a long and painful illness, Dr. Smith died of metastatic cervical cancer.

Dr. and Mr. Smith’s Release and Settlement Agreement in their medical malpractice action purports to release all claims—including wrongful death claims—by the couple, as well as their heirs, against the medical malpractice defendants. The Agreement is deemed a general and complete release in which Dr. and Mr. Smith agree not to pursue any claim for injuries or damages arising out of Dr. Smith’s medical care at issue in the medical malpractice action. The release is intended to cover “not only all known injuries, losses and damages, but any further injuries, losses and damages, not now known or anticipated but which may further develop or be discovered including all the effects and consequences thereof.”

Enforceability & Issue/Claim Preclusion: Dr. Smith’s physician stated she was cancer-free and might survive. The Smiths negotiated the settlement agreement believing Dr. Smith would not die from cancer, but the agreement purports to release wrongful death claims, claims by the Smiths’ heirs, and unknown claims to develop in the future. Does the agreement preclude Dr. Smith’s personal representative from bringing a wrongful death claim on behalf of her minor daughter, who did not receive any proceeds from the settlement?

We believe the release is unenforceable as to 5-year-old Sara Smith and that the personal representative can bring a wrongful death action on Sara’s behalf. Sara was not a party to the medical malpractice action; she did not have an independent guardian appointed to represent her interests in the settlement; and the parties did not obtain court approval to release her potential or unknown claims. SPR 98.16W (court must approve every settlement of claim, whether or not filed, involving beneficial interest of a minor); Wood v. Dunlop, 83 Wn.2d 719, 521 P.2d 1177 (1974). In Washington, the wrongful death claim would not even accrue until the date of death.

While recognizing that the elements of recovery are different in personal injury and wrongful death actions, in 1915, the federal district court, applying Washington law, held that a judgment in a personal injury suit (for the defendant) precluded relitigation of the issue in a subsequent wrongful death action. Frescoln v. Puget Sound Traction, Light & Power Co., 225 F. 441 (D. Wash. 1915).[2] The court reached this decision under the doctrine of res judicata (claim preclusion): since a court had determined the defendant was not negligent, the personal representative could not bring a subsequent wrongful death claim alleging the same negligence.

But subsequent case law in Washington and elsewhere supports the position that recovering an award in, or settling, a personal injury or medical malpractice action, as in the Smith case, does not release a subsequent wrongful death claim because:

  • When the personal injury case is settled, the decedent is still alive, the claim has not accrued, and no personal representative or wrongful death claimant exists to settle with; and
  • The beneficiaries, damages, and statutes of limitations are different in each cause of action.

As one commentator has observed, where there is a recovery in a personal injury action, res judicata is not a sound basis for barring the wrongful death claim:

[C]onsidering distinctions between parties and damages in survival actions (victims’ actions) as opposed to those in wrongful death suits (brought by survivors), neither res judicata nor collateral estoppel preclude[s] recovery under one cause of action on grounds of a judgment in the other. Therefore, neither res judicata nor collateral estoppel supports denying a cause of action to wrongful death beneficiaries where a decedent’s personal injury suit has reached final judgment.

Elizabeth Clark, Comment, Impacts of Modern Life Support Techniques on Wrongful Death Actions Brought After Final Personal Injury Judgments, 16 U. Puget Sound L. Rev. 711, 722 (1993).

A minority of jurisdictions recognizes that resolution of a personal injury or medical malpractice action does not preclude a wrongful death claim. In the leading case of Alfone v. Sarno, 87 N.J. 99, 432 A.2d 857 (1981),[3] the New Jersey court held that wrongful death actions create in a decedent’s beneficiaries rights independent of and distinct from those in the underlying personal injury claim. The court recognized that this holding might prevent insurers from obtaining complete releases from all possible wrongful death claimants, unless the insurer included in any agreement persons who would became wrongful death beneficiaries. Alfone, 87 N.J. at 114-23. Alfone, by tailoring recovery to award damages only for survivors’ injuries that were not compensated for as part of the decedent’s prior personal injury award. alleviated the concern over double compensation often expressed in the majority jurisdictions’ rulings.[4] As of 1993, at least 6 other jurisdictions (California, Kansas, Louisiana, Ohio, Pennsylvania, and South Dakota) had issued decisions agreeing with the New Jersey court. 16 U. Puget Sound L. Rev. at 718-20. In addition, the United States Supreme Court has upheld wrongful death recovery under the Death on the High Seas Act, notwithstanding a prior personal injury award and the alleged risks of excessive or overlapping recovery. Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573 (1974); see also Schwarder v. United States, 974 F.2d 1118, 1129 (9th Cir. 1992) (parents’ settlement did not bar children’s wrongful death action because under California law, claim for loss of parent is separate and independent from the parent’s personal injury claim); 16 U. Puget Sound L. Rev. at 718-20; Annotation, Validity of Release of Prospective Right to Wrongful Death Action, 92 A.L.R.3d 1232 (1979).[5]

Still, the settlement agreement’s enforceability obviously depends on the agreement itself. Even in the minority state of Ohio, the court of appeals recently held, in an unpublished opinion, that personal injury settlement agreements including indemnification clauses in the event of a later cause of action barred a wrongful death action. Lambert v. Western Reserve Care System, 2000 WL 246494 (Ohio App. 2000) (claimants/settlors waived all present and future claims; claimants were sole beneficiaries; previous Ohio case allowed wrongful death claim after medical malpractice judgment, as opposed to settlement).

The majority rule is partly driven by a concern for excessive compensation to the wrongful death beneficiaries, who are often the same as the personal injury/medical malpractice beneficiaries: 16 U. Puget Sound L. Rev. at 727. For example, in Suber v. Ohio Medical Products, Inc., 1991 Tex. Ct. App. LEXIS 144, the decedent’s husband and mother, after receiving a $6 million personal injury award, filed a wrongful death action, which the trial court dismissed on summary judgment. On appeal, a majority of the reviewing court reversed. The dissenting judge, however, emphasized that the largest portion of the personal injury award—$5 million—was allocated to future medical expenses based on the decedent’s expected survival. The dissent observed that the survivors were possibly motivated to withdraw life support in order to reserve this large lump sum award to themselves by way of the decedent’s estate. The Texas Court of Appeals then reheard the appeal and reinstated the trial court judgment precluding any recovery in the subsequent wrongful death case. 811 S.W.2d 646 (Tex. App. 1991, writ denied). The concern for excessive compensation prevailed in Texas.[6]

Where the personal injury recovery is by settlement, one solution is a deferred payment mechanism such as a structured settlement or periodic payment system. See RCW 4.56.260 (requiring periodic payment of economic damages awards in personal injury suits if party so requests).

This is especially true where such plans are used to administer decedents’ personal injury awards, and where they permit the award of certain economic damages only as those damages are incurred (subject to the limit of an otherwise immediate lump sum award, or until death occurs). Such provisions often apply to future medical costs incurred over an injured person’s convalescence or projected survival. This approach eliminates the risk that survivors will inappropriately accede to personal injury awards through a decedent’s estate, especially considering that future medical costs often constitute the greatest portion of the overall personal injury award.

16 U. Puget Sound L. Rev. at 730-31 (footnotes omitted). Where the prior recovery is by judgment, the concern for double recovery can be resolved through using special jury verdicts that itemize damages. 16 U. Puget Sound L. Rev. at 728.

Washington cases appear to be in accord with the minority rule allowing wrongful death claims to proceed after a personal injury or medical malpractice recovery. Our cases recognize that wrongful death claims are distinct and independent of personal injury/medical malpractice claims and that double recovery can be avoided when both claims coexist.[7] But we have found no Washington State case explicitly holding, as in Alfone and other minority cases, that recovery in a personal injury/malpractice claim does not preclude a wrongful death claim.

The complex decision whether to pursue a wrongful death claim, and when, may make the plaintiff’s lawyer vulnerable to a legal malpractice claim. In Moscatello v. University of Medicine & Dentistry of New Jersey, 2001 WL 693935 (Super. Ct. N.J., App. Div., June 21, 2001), the court ruled that a wrongful birth settlement by the parents of a child born with disabilities did not extinguish the child’s wrongful life claim for extraordinary medical expenses. This was fortunate for the plaintiffs’ lawyer, because the parents also contended that their lawyer breached his duty to the child by failing to consider the child’s interests separate and apart from their interests. The appellate division held that even if the lawyer had such a duty, he did not breach it because the court had concluded the child’s wrongful life claim could proceed.

Should a lawyer be liable for malpractice for failing to consider a dependent minor’s potential wrongful death claim during settlement of the injured parent’s medical malpractice claim, when the wrongful death statute of limitations could cut off the child’s claim before the injured parent dies? Does Moscatello mean that the plaintiff’s lawyer would be liable only if he failed to successfully challenge that wrongful death statute of limitations or some other impediment to the child’s claim? If the settlement turns out to be unenforceable as to the child’s wrongful death claim, does the defendant then have a legal malpractice claim against its lawyer for failing to join a necessary party (the child) and failing to have a guardian ad litem appointed to approve the settlement? As discussed below, the Smith case may actually present some of these questions because of Oregon’s statute of limitations for wrongful death claims.

Statute of Limitations in the wrongful death action: The majority of jurisdictions recognizes that a wrongful death claim accrues no earlier than the date of death. This is true even if the decedent’s personal injury action would have been time-barred had she lived.[8] See D. Chapus, Annot., Medical Malpractice: Statute of Limitations in Wrongful Death Action Based on Medical Malpractice, 70 A.L.R. 4th 535 (1989 & Supp. 2001).

If indeed the medical malpractice statute of limitations applied to wrongful death claims, we would have the situation where such a claim could be barred even before death triggers accrual of the right to bring the action.  Such a result seems to us illogical and unjust. . . . While the Legislature may have the power to enact such a limitation period barring wrongful death claims even before they accrue, it is obvious to us that the Legislature did not do so here.

Wills v. Kirkpatrick, 56 Wn. App. 757, 762-63, 785 P.2d 834, review denied, 114 Wn.2d 1024 (1990). The statute of limitations in a medical malpractice action, by contrast, is three years from the time of the act or omission causing the injury.  RCW 4.16.350. The 1-year discovery rule applies to postpone accrual of the wrongful death claim. Whether the death provided facts from which the claimant discovered or should have discovered the cause of death is a question of fact.  White v. Johns-Manville Corp., 103 Wn.2d 344, 352, 353, 693 P.2d 687, 49 A.L.R. 4th 955 (1985); Allen v. State, 118 Wn.2d 753, 826 P.2d 200 (1992).

The Smith case took place in Oregon, presenting certain unique legal complications that, at least so far have weighed against pursuing a wrongful death claim in that case. These complications include: (1) an unusual statute of limitations for wrongful death claims, setting accrual at 3 years after the injury causing the death of the decedent is discovered or reasonably should have been discovered by the decedent, personal representative, or beneficiary;[9] (2) The reality that a constitutional challenge to this statute of limitations would be difficult, time-consuming, and costly, whether successful or not; and (3) It was anticipated that the settlement judge in this case would be strongly opposed to considering the settlement agreement unenforceable against Dr. Smith’s heir; (4) Venue for the case was a small legal community where the Smiths’ lawyer was realistically concerned about how his colleagues would perceive a challenge to the settlement agreement. Nevertheless, the challenge is still under consideration. We welcome your thoughts.

  1. [1] Jane Smith and all other names are fictitious because of a confidentiality agreement in the actual case, which occurred in Oregon.
  2. [2] We have found no published decisions by Washington State courts citing Frescoln. An annotation by Vitauts M. Gulbis, Annotation, Judgment in Favor of, or Adverse to, Person Injured As Barring Action for his Death, 26 A.L.R. 4th 1264 (1983), cites Frescoln as following Washington law. Recently, in Estate of Lee v. Spokane, 101 Wn. App. 158, 173-74, 2 P.3d 979 (2000), the court held that, since the lower court concluded the death was not wrongful and dismissed the survival action, there was no basis for a wrongful death claim. But Estate of Lee did not involve an affirmative recovery or judgment for the plaintiff and does not preclude the above arguments in favor of allowing a wrongful death claim to proceed after a personal injury recovery or judgment for plaintiff.
  3. [3] Overruled on issue whether wrongful death act is codification of common law (and whether statute of limitations may therefore be equitably tolled for minority), LaFage v. Jani, 166 N.J. 412, 766 A.2d 1066, 1091 (2001).
  4. [4] Recently, the New Jersey court held that a wrongful death action would stand on its own even though the decedent never filed a personal injury claim before she died.  Miller v. Estate of Sperling, 166 N.J. 370, 766 A.2d 738 (2001).
  5. [5] Cases representing the majority rule include Varelis v. Northwestern Memorial Hospital, 167 Ill. 2d 449, 657 N.E.2d 997 (1995).
  6. [6] A Florida court has rejected the concern for excessive compensation based on the lack of any evidence to support this motivation on the part of the potential heirs of a young cardiac arrest victim. In In re Guardianship of Schiavo, 780 So.2d 176 (Dist. Ct. App. Fla. Feb. 22, 2001), a young woman, Theresa Schiavo, received a medical malpractice award that provided for her care after a cardiac arrest left her in a permanent vegetative state. The husband, as guardian, applied to the court to decide whether to authorize the discontinuance of artificial life support for Theresa. The court authorized the termination. After the court of appeals affirmed the order authorizing termination of life support, however, the parents presented unsigned affidavits from the husband’s former girlfriend who they claimed would testify that the husband said he and Theresa had never discussed what Theresa’s wishes would be in her present condition. The parents alleged that this testimony contradicted the husband’s testimony at trial and might establish perjury. The court of appeals affirmed in part, reversed in part on procedural grounds, and remanded for further proceedings. In re Guardianship of Schiavo, 2001 WL 770772 (unpublished slip op., Dist. Ct. App. Fla., July 11, 2001). The case and Theresa are both still alive.
  7. [7] See, e.g., Estate of Lee v. Spokane, 101 Wn. App. 158, 173, 2 P.3d 979 (“The relevant statutes are of two types[:]  Wrongful death statutes, which provide a cause of action for the survivors or a person tortiously killed to recover their own losses, and survival statutes, which preserve the decedent’s claims for his own losses. . . . “), review denied, 142 Wn.2d 1014 (2000); Tait v. Wahl, 97 Wn. App. 765, 987 P.2d 127 (1999), review denied, 140 Wn.2d 1015 (2000); Cavazos v. Franklin, 73 Wn. App. 116, 867 P.2d 674 (1994).
  8. [8] Accordingly, in some states, a wrongful death claimant could be barred not by the statute of limitations, but by the rule discussed above that wrongful death claims cannot proceed in the face of a personal injury or medical malpractice recovery.
  9. [9] Oregon Revised Statutes (ORS) 30.020; Baxter v. Zeller, 42 Or. App. 873, 601 P.2d 902 (1979). This creates the absurd result that, as occurred in Dr. Smith’s case, the statute of limitations can run before the injured person dies.