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Wrongful Death and Survival: Two Different Claims

The Fort Worth Court of Appeals attempted to clarify the sometimes confusing law concerning the damages available when a victim of negligence dies. Cunningham v. Haroona, NO. 02-07-00231-CV, 2012 Tex. App. LEXIS 7053 (Tex. App. Fort Worth Aug. 23, 2012, no pet.) (the Court denied motion for reconsideration en banc on October 18, 2012).

A death case gives rise to two distinct sets of damages, the wrongful death claim for the loss to the surviving spouse, children or parents of the decedent and the survival claim for the loss the decedent's estate. The latter is for the decedent's own pain and suffering before death, medical costs, and burial expenses.

But what if only some of the negligent defendants are alleged to have caused death? Clearly, there is no wrongful death claim against that defendant, but is there still a survival claim for non-fatal injuries caused by other defendants? Probably, but only if there is evidence that the allegedly non-fatal injury isdistinct from the fatal injury.

Facts of the case

The Court of Appeals case arises out of the death of Patricia Cunningham. While in the hospital, Mrs. Cunningham developed serious pneumonia and, following a cascade of other serious conditions, died two weeks later. Her surviving spouse sued individually (wrongful death claim) and as representative of Mrs. Cunningham's Estate (survival claims) seeking damages against numerous defendants, including Ladi O.M. Haroona, M.D. who was assigned to treat her pneumonia.

The jury found that the hospital and two doctors proximately caused Mrs. Cunningham's death, but found that Dr. Haroona and several others did not. The trial Court entered judgment and both sides appealed. Most defendants settled on appeal, leaving the appeal by the plaintiffs of the judgment for Dr. Haroona.

The Court's Decision

On appeal, the Cunningham's argued that the trial court erred by combining the wrongful death and survival actions into a single liability question. Because the jury found that three of the defendants' negligence caused Mrs. Cunningham's death, the Cunningham's argued that the jury was not able to consider whether any negligence of Dr. Haroona caused non-fatal injuries.

The Court ultimately concluded that the alleged non-fatal injuries were not distinguishable from the injuries leading to death. The Cunningham's experts could not separate the acts of the various defendants in the chain of causation leading to death, and could not testify that any act or omission by Haroona proximately caused non-fatal injury to Mrs. Cunningham.

The Court decided that the Cunningham's were not entitled to the submission of jury questions for separate non-fatal injuries because the evidence showed only a continuum of causation leading to death. In other words, the injuries allegedly caused by Haroona's care were in the continuum of symptoms leading up to death.

What does this mean?

The significant take away here is that Courts do NOT look with favor on attempts to double up on damages by novel legal theories. If there is a single set of damages, no amount of artful pleading, despite the vagaries of the Wrongful Death and Survival Acts, will allow for multiple recoveries for the same damages under alternate theories. In the right case, the plaintiff may make the argument that the decedent suffered distinct injuries. However, defense lawyers ought to be on the lookout for such claims and argue that the non-fatal injuries are not distinguishable from the fatal ones.

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