Expansion of Wrongful Death Damages
Pennsylvania – Health Care Liability
- "Loss of services" under the Pennsylvania Wrongful Death Act includes more than just "household chores."
- Services extend to profound emotional and psychological loss suffered on the death of a parent or child.
- There is the potential for enlarged wrongful death awards as it is difficult to quantify claims of emotional and psychological loss.
Under the Pennsylvania Wrongful Death Act, members of a decedent’s family may recover not only for medical, funeral and estate administration expenses they incur, but also for the pecuniary loss to the decedent’s family. 42 Pa. C.S. 8301(b). Traditionally, under the Wrongful Death Act, the only recoverable damages to the decedent’s family included compensation for the economic loss suffered as a result of a death, rather than the value of a lost life. For example, the pecuniary losses recoverable included the amount of the loss of earnings or services the family members would have received from the decedent had he lived. The Pennsylvania Standard Jury Instructions suggest that, in awarding wrongful death damages, a plaintiff can be compensated for: hospital, medical, funeral, burial and estate administration expenses; the loss of any contribution they would have received between the time of the decedent’s death and the date of the award, including money for food, shelter, clothing, medical care and education; the value of all sums the decedent would have contributed to the support of his/her family between the date of the award and the end of his/her life expectancy; and a sum that will fairly and adequately compensate a decedent’s family for the monetary value of the services, society and comfort the decedent would have provided to his/her family had the decedent lived.
In February of 2011, the Pennsylvania Supreme Court denied UPMC Shadyside’s petition for allowance of appeal in Rettger v. UPMC, 2011 Pa. LEXIS 377 (Pa., Feb. 16, 2011). In doing so, the Supreme Court effectively expanded the scope of wrongful death damages recoverable by upholding the ruling of the Superior Court in Rettger v. UPMC, 991 A.2d 915 (Pa. Super. 2010), which had affirmed an Allegheny County jury’s award of $2.5 million in wrongful death damages to the parents of Michael Rettger, a 24-year-old single male with no children or dependents at the time of his death in November 2003.
In Rettger, the decedent, Michael Rettger was a 24-year-old accountant who began treating with defendant, Eugene Bonaroti, M.D., after suffering from severe and prolonged headaches. He was diagnosed with an aggressive form of brain cancer known as a glioblastoma muliforme. He was transferred to UPMC Shadyside Hospital on November 15, 2003, and was scheduled for surgery on November 19, 2003. On November 18th, the plaintiff's decedent displayed uneven pupil size along with substantial pain, for which he was given narcotic pain medication by Nurse Kirsten Stalder. In the early morning hours of November 19th, Nurse Stalder documented that Michael Rettger's left pupil was fixed and dilated, which indicated that he was experiencing escalated pressure on the brain. She also documented that she had called Dr. Bonaroti at home to report on his condition. It was Nurse Stalder's assertion during trial that she told Dr. Bonaroti that the decedent's left pupil was fixed and dilated. Dr. Bonaroti disagreed and contended that he was only told that his pupils were uneven. At 6:00 a.m. on November 19th, Michael Rettger's condition had deteriorated to the point where both pupils were fixed and dilated. Prior to surgery, he lost consciousness and was placed on life support. Two surgeries were performed to relieve pressure on the brain, but Michael Rettger never regained consciousness and died within 24 hours. Ultimately, it was determined that the decedent did not have a glioblastoma, but rather a fast moving brain abscess and brain herniation.
The decedent's estate commenced an action in the Allegheny County Court of Commons Pleas, asserting causes of action for both wrongful death and survival. After an eight-day trial before the Honorable Timothy O'Reilly, the jury awarded Rettger's family $2.5 million on the wrongful death action and $0 on the survival action. The case was eventually retried on damages, and a second jury awarded $10 million on the survival action.
On appeal to the Superior Court, UPMC argued that the jury's award of $2.5 million was excessive as the decedent was unmarried and had no children or dependents and provided only limited services in his parents' home, including performance of yard work when he returned on weekends. The Superior Court disagreed, holding that, in the context of a wrongful death action, the term "services" is not merely limited to yard work but, rather, extends to the profound emotional and psychological loss suffered upon the death of a parent or a child where the evidence clearly establishes the negligence of another was its cause. The Superior Court found that the jury recognized the depth of the anguish suffered by Rettger's parents and, in support of the jury's award, cited portions of the mother's testimony to demonstrate the extent of the loss suffered by Rettger's parents. They found that "Mrs. Rettger's loss far exceeded the value of her son's yard work."
In conclusion, defense attorneys should be aware of the potential for greater wrongful death damages awards. It should be expected that plaintiffs' attorneys, in arguing damages, will request grief and emotional distress damages for the decedent's family members, thereby making the potential for larger awards greater as there is no real ability to quantify damages such as "grief” and "emotional distress."
*Jennifer is an associate in our Philadelphia, Pennsylvania, office. She can be reached at 215.575.2667 or firstname.lastname@example.org.
Defense Digest, Vol. 18, No. 2, June 2012