Wrongful Death Due to Medical Malpractice

According to the Institute of Medicine, between 44,000 and 98,000 Americans die every year in hospitals as a result of preventable medical errors. An unexpected death can be an unbelievably stressful time for a family. Close family members usually plan a funeral and memorial services, take over the deceased individual’s finances, and make decisions about probate, all while mourning the loss of a loved one.

In most situations, immediately after the death of a loved one, a lawsuit may be the furthest thing from the minds of the close family members. Some may feel that even when medical malpractice may have played a role in the death, a lawsuit isn't worth it, since it can't rectify the error and bring the loved one back. Other family members may feel compelled to at least explore the possibility of seeking a legal remedy if a loved one's death may have been preventable. 

In the sections that follow, we'll discuss the complex body of law surrounding medical malpractice cases arising out of the death of a patient, specifically, the difference between a wrongful death and a survivor action, as well as the “loss of chance” doctrine.

Wrongful Death and Survivor Actions

There are basically two different potential lawsuits that arise when a medical error causes the death of a patient: a wrongful death action, and a survivor action. Both causes of action are types of medical malpractice cases. In the vast majority of cases, a deceased patient’s family files both claims in the same case. The two differ in the type of damages that are available.

Wrongful Death Actions. By filing a wrongful death claim, the family of the deceased patient basically makes the following argument:

1. The patient died because of a medical error that should not have happened.
2. The patient had very close family members.
3. The family members suffered losses as a result of the death.
4. Therefore, the doctor or hospital responsible for the medical error should compensate the close family members for all losses and damages stemming from the death.

It's important to note that in a wrongful death action, the family does not sue for harm inflicted on the deceased person. Rather, the family members sue for damage that was actually caused to them as a result of the loss of their loved one. These damages can include:

• loss of quality of life
• loss of love and emotional support, and
• loss of financial support.

Survivor Actions. By filing a survivor claim, the family of the deceased patient basically makes the following argument:

1. The patient died because of a medical error that should not have happened.
2. The medical error caused pain and suffering to the patient before the patient died.
3. If the patient had survived, he or she would have been able to sue the doctor or hospital and recover compensation for the pain and suffering.
4. The doctor or hospital should not be able to escape liability for pain and suffering, simply because the patient died.
5. Therefore, the doctor or hospital responsible for the error should have to pay damages for pain and suffering to the deceased patient’s estate.

The survivor claim is somewhat misnamed, since it is only available after someone has died. The idea is that when a person is harmed, that person has a right to a lawsuit. That right should not die with the person. Therefore, the right to sue “survives” the person’s death. So, the estate of a deceased patient can recover damages for the pain and suffering of a patient prior to the patient’s death.

Loss of Chance

Another complex legal issue that tends to arise in wrongful death cases is the "loss of chance" doctrine. As a general rule of medical malpractice cases, a patient may only sue a doctor if the doctor made a mistake that caused harm to the patient. That sounds simple enough, but in practice it can be a difficult rule to apply.

Imagine a patient has a cancerous tumor in her brain stem. If left untreated, the tumor will kill the patient within days. A doctor conducts a surgery on the patient during which the doctor attempts to remove the tumor. Even if successful, the patient only has a 10% chance of survival. But the surgery is not successful. The doctor makes an error during surgery, severing a portion of the brain stem,and the patient dies.

Should the patient’s family be able to sue the doctor for wrongful death? If so, should the harm be measured by the difference between dying during the surgery and dying a few days later, or should the court assume that the patient would have recovered and led a long and healthy life if the doctor had not made the mistake?

The answers to these questions vary by state. But most courts allow wrongful death medical malpractice cases based on the “loss of chance” theory. Based on that theory, as long as the patient had a chance of survival, even if it was a small chance, a court will assume that the doctor’s mistake shortened the life. In other words, most courts do not allow doctors to use “the patient would have died anyway” as an excuse when there is a chance that the patient would have in fact survived.