Wrongful Death Damages
I am preparing for mediation and possible settlement of a case where a husband and father died because of the negligence of two doctors. I have all my experts and medical facts lined up to show the medical malpractice and how with one simple and routinely done test, this man would still be alive. What I am working on now is what the damages are or what could a jury award if we were unable to settle and must proceed to trial.
The basic theory of damages is for a monetary award by a jury to put a person back in the same position they would have been in but for the negligence. So if a person broke a contract and refused to pay what they owed, the jury would award the amount they were supposed to pay and interest for the time it took to be made whole. For someone physically injured, it could be the amount of doctor bills, lost wages, and even some amount for the physical pain and mental suffering because of the physical injury. This traditional thought of damages breaks down when you are talking about a death. There is no longer a person here that can take any amount of money so no amount of money can compensate. This would lead to the curious result of a person in a car wreck with a broken arm would be more “valuable” than the person killed in the same wreck.
To fix this incongruity, North Carolina, as well as the other states, passed what are known as wrongful death statutes. The North Carolina statute recognizes that a death by the wrongful or negligent act of another should be recoverable against the defendant. The statute also sets forth the damages that can be recovered and who exactly would receive those damages.
The statute provides that the person or persons who are entitled to receive any money for damages is first the estate of the person who dies, to pay for his hospital bills and funeral expenses. After that, the closest family of the dead person is entitled to recover. The statute determines those people based on the same people who would inherit anything from the dead person if they died intestate (without a will). The family member must also establish that they had an actual relationship, and were not cut off or estranged from the deceased person.
The damages available to the surviving family is based on how the death affected them. First, the family members can recover the economic damages. This is what the family would have received from a deceased person’s income for the rest of his working. This is fairly easy for an economist to calculate with when the surviving family is a wife and children. If the deceased had only adult children and is no longer supporting them or is married, there are no family members who would experience this particular economic loss. Other types of economic loss would be loss of specific services around the home. Basic chores is something different, but if the deceased performed involved handyman or landscaping services, that has a monetary value (what would it cost to pay someone to do the same services).
Second, there are non-economic damages. These are the things that are real damages to the family but don’t have a direct equivalent in money. The statute provides for recovery for services, protection, care, assistance, society, companionship, comfort, guidance, kindly offices, and advice. While it’s tempting to lump all those areas together, and while they do overlap, they do have different meanings. They are not defined in the statute, so we turn, as a judge would instruct a jury, to their ordinary meanings.
Webster’s Ninth New Collegiate Dictionary (1987) offers the following definitions for these terms:
Services: Help, use, benefit. Helpful acts. Useful labor that does not produce a tangible commodity. (Not these are services that don’t have a value you can actually calculate. Those services are part of the economic damages).
Protection: The act of protecting. To cover or shield from exposure, injury or destruction. Supervision or support of one that is smaller and weaker.
Care: Painstaking or watchful attention; regard corning from desire or esteem; concern; solicitude.
Assistance: The help supplied, the act of assisting; to give support or aid; help.
Society: Companionship or association with one’s fellows; friendly or intimate intercourse; voluntary association of individuals for common ends.
Companionship: The fellowship existing among companions. Companions are comrades and associates.
Comfort: Strengthening aid; assistance; Support. Consolation in time of trouble or worry.
Guidance: The act or process of guiding. conduct or course of living. A guide is one who leads or directs another in his way; someone who provides a person with guiding information; and one who directs a person in his conduct or course of life.
Kindly Offices: Kindly is of an agreeable or beneficial nature, pleasant. And offices is a special duty or charge; a position of responsibility; something that one ought to do or must do; an assigned or assumed duty, task or role; something done for another.
Advice: Recommendation regarding a decision or course of conduct.
In many cases, the loss of these non-economic benefits to the family is worth far more to them than any loss of income and the jury determines what is a fair compensation for their loss…with one exception. If the death was caused by the negligence of a doctor or health care provider, the amount of loss the jury determines is the fair amount for the non-economic damages will be reduced if it is over $515,000. The exception to this exception is where the medical negligence was intentional, grossly negligent, fraudulent, or with malice.
-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation. Please contact him at (910) 772-1678.