|
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.
|
|
The reason is the "cap trap," which is lurking in all of these cases. Juries are not told of the $100,000 cap on non-pecuniary losses (i.e., grief and bereavement) and may inadvertently put a large amount on that line of the verdict form, causing the jury to pay less attention to the Wentling losses thinking that they have already adequately compensated the plaintiffs. When judgment is entered, the non-pecuniary verdict is then reduced to $100,000 based on the cap, which could wipe out the bulk of the verdict.
Now that the wrongful death cap has been raised to $250,000, the stakes of waiving the non-pecuniary damages have been raised. It is our belief that waiving the non-pecuniary cap does not make sense with the $250,000 limit in most cases; however, it still may be a wise, although risky, strategy in the right case.
We have summarized a few cases in the accompanying chart which demonstrate the value of Wentling damages. Please let us know of your Wentling settlements or verdicts.
| |
|
KANSAS RAISES WRONGFUL DEATH LIMIT
Effective July 1, 1998, House Bill 2143 raises the limitation on non-pecuniary damages in wrongful death actions in Kansas to $250,000. The previous limitation under K.S.A. § 60-1903 was $100,000. The increase is a substantial step in the right direction for the citizens of the state seeking justice for deaths of loved ones killed by the negligent acts of others. A detailed discussion of the interplay between the wrongful death limitations and the Wentling damages is discussed further in this issue of the newsletter.
|
|
|
