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Wrongful Death Cases: The Issue of Suffering

Steven E. North and Laurence M. Deutsch


When a person dies as a result of medical malpractice, there may be a case brought for “wrongful death.”

To prove a case of “wrongful death” the attorney is required to show that there was a wrongful or negligent act (such as medical malpractice) which was “a cause” of the patient’s death. Of note, the negligence or malpractice does not have to be the only cause of death. If the wrongful act is a “significant factor” in causing death, even if it is ultimately due to multiple causes, the person acting improperly is still responsible for that death.

Although we all ultimately die, actions which bring about the premature death of a person can produce a viable claim; the circumstances surrounding the dying process become critical, though quite morbid, in determining damages. Take for example, an individual who suffers a protracted and agonizing illness and dies slowly and painfully as a result of the failure to timely diagnose a cancer that otherwise could have been curable. At some point in the litigation, the gruesome details of the person's agony must be surfaced so that it can be appropriately evaluated from the damage perspective.

There are also legally viable claims for causing the process of dying to be needlessly painful and distressing. In a New York Times article, “The Gentler Symptoms of Dying,” Sara Manning Peskin, M.D., describes how some people experience death with "air hunger and terminal agitation." Clearly, family members or friends who witness their loved one gasping for air due to the impairment of their lungs or other organs can establish the element of "pain and suffering," which may then command a substantial recovery.

On the other hand, there are people who have the good fortune of experiencing  the prelude to death in what can be described as a relaxed and sometimes insightful manner. Despite the fact that damages in such a circumstance are less than those for an individual who dies in an agonized fashion, we would much rather see our clients’ injuries dissipate rather than exacerbate before death, despite the more modest value of the case.

Although it is the practice of this office to create "Day in the Life" films which demonstrate the real-life ordeal experienced by some of our clients, some of whom are brain-damaged infants, we always respect the family’s wish to defer such videotaping if our clients’ feel it would be disrespectful to their loved one’s memory. It is important for the family to be able present a picture that will convey to a jury an accurate account of those final days. But whether a family wishes to do so in their words and recollections only, or whether they want the actual images preserved, is a highly personal matter and one that we respect in our relationship with our clients.

Source: The New York Times, “The Gentler Symptoms of Dying,” Sara Manning Peskin, M.D., July 11, 2017