Premortem pain and sufferering - changes to California litigation.

By Patrick J. Glinka, Esq.

On October 1, 2021, California amended Code of Civil Procedure section 377.34. This amendment, brought about by Assembly Bill 447, allows recovery of damages for pain, suffering, or disfigurement endured by the decedent before death in a survival action brought by their representative.

Before discussing the amendment, it is important to understand survival actions. Survival actions are distinct from wrongful death claims. A wrongful death claim seeks compensation for the losses suffered by the decedent’s surviving family members due to the death itself, such as loss of income or companionship. In contrast, a survival action continues the legal claims the decedent had at the time of their death. These claims could include personal injuries sustained before their passing.

Prior to the recent amendment, Code of Civil Procedure section 377.34 limited recoverable damages in survival actions to those the decedent experienced before death, excluding pain, suffering, and disfigurement. This meant that while a decedent’s medical bills and lost wages could be recovered, their premortem pain and suffering went uncompensated. This approach was rooted in the concept of “personal injury dies with the person.” Plaintiff’s lawyers have argued that this “death discount” was unfair because it failed to account for the very real and often substantial harm a decedent experiences before succumbing to their injuries. The amendment to Code of Civil Procedure section 377.34 now allows recovery of damages for pain, suffering, and disfigurement. This change brings California in line with a growing number of states that recognize a decedent’s premortem non-economic loss.

6 Concerns Over Proving Pain and Suffering

While some may argue that the amendment only rights a long-standing wrong, there are many reasons to be concerned about its effect on personal injury litigation in California.

1. Difficulty in Proving Pain & Suffering Damages

One major argument against the amendment centers on the challenge of proving the decedent’s pain and suffering. Unlike medical bills or lost wages, pain and suffering are subjective experiences. Because the decedent cannot testify, jurors will be hard-pressed not to put themselves in the decedent’s shoes up to the moment of his/her death. This violates the “Golden Rule,” where jurors are admonished not to decide an issue based on how they themselves might have felt, but rather only on what has been proven by admissible evidence.

2. Potential for Jury Bias

Even if jurors properly base their decisions on the evidence presented, that evidence itself may be so compelling that it sways juries towards awarding higher verdicts due to emotional responses to the decedent’s experience. Accordingly, juries may not be able to objectively weigh the evidence related to liability when confronted with the decedent’s suffering. Moreover, it may be impossible for a defense attorney to skillfully navigate a defense around the extent of a decedent’s pain and suffering without risk of seeming callous and angering a jury.

3. Increased Litigation Costs

The ability to recover pain and suffering damages in survival actions could also lead to lengthier and more complex litigation. The parties might need to retain expert witnesses like psychologists or neurologists to address claims of pain and suffering. This could ultimately increase the overall cost of litigation for both parties.

4. Bifurcation of Trial

To avoid prejudice during jury deliberations, courts may need to separate the trial into phases, addressing liability first and then damages, including pain and suffering, in a separate phase.

5. Insurance Coverage Concerns

Insurance coverage for pain and suffering damages in survival actions may also need clarification because policies likely have not been drafted or underwritten to take into consideration the significant exposure now faced by these new recoverable damages.

6. Whether to Bring a Claim at All

One consideration plaintiff’s lawyers are now faced with is whether to make a survival claim at all. In a traditional wrongful death claim, only the estate is liable for the decedent’s medical bills, not the heirs. This often leads to no survival claim being made at all. However, now with the potential of general damages for the estate, the attorney must consider how medical lien holders will try to make themselves whole at the expense of a large general damages settlement. In this scenario, a medical lien holder might be less inclined to negotiate down a lien if they know the estate received a substantial general damages settlement.

Conclusion: Assessing Pain and Suffering Compensation

The amendment to Code of Civil Procedure section 377.34 marks a significant shift in California’s approach to survival actions. While personal injury attorneys will argue that it allows for a more complete and just recovery for the full range of harm suffered by a decedent, challenges remain regarding proof of damages, trial procedures, and insurance coverage. Ultimately, as this amendment is tested, a balanced approach that acknowledges the decedent’s pain and suffering while ensuring fairness for defendants is essential for moving forward.

About the Author

Patrick J. Glinka is Special Counsel at Bradley, Gmelich + Wellerstein LLP. Mr. Glinka had defended clients in a broad range of civil litigation matters, including medical malpractice, products liability, premises liability and amusement and recreation liability. His experience includes many first chair jury verdicts, as well as appellate advocacy. Mr. Glinka is a graduate of the National Institute of Trial Advocacy and a member of the International Amusement & Leisure Defense Association and Defense Research Institute.