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. In the sections that follow, we'll discuss the complex body of law surrounding lawsuits seeking a civil remedy for a patient's death where medical malpractice was a factor, including the difference between a wrongful death and a survivor action, and an explanation of the “loss of chance” doctrine.
Wrongful Death and Survivor Actions
There are basically two different potential lawsuits that arise when medical negligence plays a role in the death of a patient: a wrongful death action, and a survivor action. Both causes of action can be brought in connection with a medical malpractice case. In the vast majority of cases, a deceased patient’s family files both claims in the same case. The two differ when it comes to the kinds of damages (compensation for harm) that are available.
Wrongful Death Actions. By filing a wrongful death claim, the family of the deceased patient typically makes the following legal argument:
- the defendant's patient died because of a medical error that should not have happened
- the patient had very close family members
- the family members suffered certain compensable losses as a result of the death, and
- the doctor or hospital responsible for the medical error should compensate the close family members for all losses and damages stemming from the death. (If a loved one died as a result of negligent medical care, see Can You Sue a Doctor for Wrongful Death?)
It's important to note that in a wrongful death action, the family does not sue for harm inflicted on the deceased person (except in certain states that allow the family to recover for the patient's "pain and suffering" before death). Rather, the family members sue for damage that was actually caused to them as a result of the loss of their loved one.
The specific wrongful death damages that are available to a claimant depend on what each state's laws says, so you'll need to talk to a lawyer or read the fine print of your state's wrongful death statute for the details. But typically, these damages can include:
- loss of love and emotional support
- loss of financial support (subject to complex economic calculation)
- loss of intimacy and companionship (may be limited to spouses)
- financial costs of necessary medical care
- costs of funeral expenses, and
- compensation for the decedent's pre-death "pain and suffering"
Survivor Actions. By filing a survivor claim, the family of the deceased patient usually makes the following argument:
- the patient died because of a medical error that should not have happened
- the medical error caused pain and suffering to the patient prior to death
- if the patient had survived, he or she would have been able to sue the doctor or hospital and recover compensation for harm suffered
- the defendant doctor or hospital should not be able to escape liability simply because the patient died, and
- the defendant(s) should have to pay appropriate damages 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 might have a right to bring a lawsuit, and that right should not die with the decedent. So the idea is that the right to sue “survives” the decedent’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. (Learn more: When It's Malpractice and When It Isn't.)
Imagine a patient has a cancerous tumor in her brain stem. If left untreated, the tumor will almost certainly result in the patient's death within weeks. A doctor performs surgery in an attempt to remove the tumor. Even if the procedure is successful, the patient only has a 10 percent chance of survival. The doctor makes a surgical error, and the patient dies.
Should the patient’s family be able to sue the doctor for wrongful death? And if so, should the harm be measured by the difference between dying during the surgery and dying a few weeks 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, even though there was only a 10 percent chance of this happening?
The answers to these questions vary by state, and by the specific medical treatment situation. 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 patient's life. In other words, most courts do not allow doctors to use “the patient would have died anyway” to avoid liability for medical malpractice.
(Learn more about state-specific legal aspects of wrongful death, visit our sister site Nolo.com's topic page on Wrongful Death Claims.)