Articles Posted in Wrongful Death

Is this what a corporation does when it knowingly markets a product that it knows will kill?

No. “Anticipatory” wrongful death is what author Gregory P. Forney calls a claim for loss of earnings and consortium for someone who has arguably had his or her life expectancy shortened because of the negligence of another. In the case mentioned in Mr. Forney’s article, the male plaintiff was negligently not advised of a mass that was lung cancer and the delayed diagnosis greatly shortened his life expectancy. The still-alive plaintiff and his wife brought wrongful death claims; Mr. Forney apparently was one of the lawyers who defended the case.

The article sets forth Mr. Forney’s position on why the plaintiff should not have been permitted to seek such damages – which boil down to the fact that the plaintiff was not yet dead.

I wrote a couple days ago about “anticipatory” wrongful death. I mentioned that I would try to track down the case that gave rise to the article and see how it turned out.

I found it. The case is Natalini v. Little, 278 Kan. 140, 92 P.3d 567 (Kan.2004). The Kansas Supreme Court reversed the award of wrongful death damages.

The Court said “in circumstances like Natalini’s, even if a malpractice plaintiff’s premature death is highly likely to be caused by the malpractice, plaintiff’s survival for more than 4 years beyond the negligent act means no wrongful death action will ever be possible. K.S.A.2003 Supp. 60-513(c) and K.S.A. 60-1901 will combine to cut it off before it can accrue, i.e., before the death giving rise to the action has occurred. Although family members of the patient would qualify at the time of death as heirs at law entitled to seek recovery in a wrongful death suit, see K.S.A. 60-1902, they would be prevented from bringing an action because 60-513(c)’s repose language would have barred the injured patient’s own lawsuit before his or her death. See K.S.A. 60-1901; Crockett v. Medicalodges, Inc., 247 Kan. 433, 440, 799 P.2d 1022 (1990) (if injured plaintiff’s claim time barred before death, claim of heirs also barred); Mason v. Gerin Corp., 231 Kan. 718, Syl. ｬ? 1, 647 P.2d 1340 (1982) (K.S.A. 60-1901 requires “existence of a right of action in the injured person at the time of his death as a condition precedent to the existence of a right of action for wrongful death”).”

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