Anticipatory Wrongful Death – Part II

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”).”

In summary, the Court held that “there was no law supporting the instructions given here to permit Natalini’s wife and children to recover damages expected to be caused them by the future wrongful death of their husband and father. He could not recover such damages on behalf of his wife and adult children in a medical malpractice action pursued while he was still living.”

What would happen in Tennessee? Well, remember that in Tennessee the wrongful death action is brought by certain survivors (obviously) but they bring the action the decedent would have been able to bring but for his death. Therefore, a good argument can be made that the not-yet-dead decedent can bring a wrongful death claim

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