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As explained in this issue, Kansas has raised the cap on non-pecuniary damages in wrongful death cases from $100,000 to $250,000. Although this increase ameliorates some of the injustice of the cap, the limitation still prevents full and just compensation in many cases. Despite the new non-pecuniary cap, practitioners should not lose sight of the significant value of "Wentling" damages set forth in Wentling v. Medical Anesth. Serv., 237 Kan. 503 (1985), and Cerretti v. Flint Hills Rural Elec. Co-op, 251 Kan. 347 (1992), in certain types of wrongful death cases. The increased wrongful death cap applies to causes of action arising after July 1, 1998. We frequently get calls from practitioners who do not evaluate wrongful death cases in terms of Wentling damages. Their focus is on the $100,000 non-pecuniary loss, plus any out-of-pocket and lost financial contributions. In death cases of a child, or a parent of nondependent adult children, or a homemaker or unemployed or retired spouse, the Wentling damages still remain a large potential area of damages with the jury, and the possibility of a substantial Wentling verdict is the best driving force for fair and reasonable settlements in such cases. The elements of a Wentling claim include settlements in such cases. The elements of a Wentling claim include the heirs' loss of the decedent's services, attention, marital/parental/filial care, protection, training, guidance, education, nurturing and loss of a complete family. A representative case demonstrating the significant value of the Wentling damages was recently settled by Steve Six. This was a medical malpractice/wrongful death lawsuit in Douglas County, Kansas. Steve represented the four surviving adult heirs of a 62-year-old homemaker, who died as a result of a fatal cardiac arrythmia a few hours following an emergency room evaluation and discharge by the defendant physician. The woman's surviving husband and administrator of her estate did not wish to participate in the lawsuit and therefore no survival action was brought. No claim was made for specials or funeral expenses. The case was pursued by the decedent's four adult children for their loss of care, guidance, training, support, and advice, as permitted under Wentling, and the $100,000 of non-pecuniary damages allowed by the surviving heirs was $312,500, meaning that at least $212,500 was paid for Wentling damages. The law in its wisdom recognizes that many aspects of the relationship between a decedent and an heir-at-law is worthy of compensation when destroyed. Where the plaintiff's relationship with the decedent was truly strong, and the decedent had a substantial life expectancy, and there are significant losses in the Wentling categories, our firm has advocated [eventual] waiver of the non-pecuniary damages at the time the case is submitted to the jury. |
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