New California Law Allows Pain and Suffering Damages to Survive Somebody's Death
In October 2021, California amended Code of Civil Procedure 377.34 which permits recovery of damages for pain and suffering, or disfigurement in survival actions. In other words, changes to CCP Section 377.34 pain and suffering claims will survive death.
This law allows recovery of these damages by a decedent's representative or successor in interest through a survival action after their death.
Before the passage of AB 447, damages for pain and suffering or disfigurement could not be recovered following the decedent's death. Thus, many seriously injured plaintiffs sought preferential trial settings to ensure recovery of general damages before impending death.
The new Section 377.34(b) applies to actions filed between January 1, 2022, and January 1, 2026, and to all existing actions granted a trial preference.
The amendment is scheduled to sunset on January 1, 2026, but also has language that requires the Judicial Council to report judgments and court-approved settlements for further evaluation. As a result, some believe this amendment will be made permanent.
While the amendment increases insurance exposure, it makes this area of law more complex. For example, when deciding whether to pursue general damages through a survival action, the plaintiff's lawyer has to consider the weigh the exposure of settlements to medical liens.
Unlike a wrongful death lawsuit, which is an action for the victim's survivors, a survival action is derivative of the victim's tort claim and subjected to liens for medical expenses.
This amendment could also impact granting of preferential trial settings because the justification that a plaintiff would lose the right to pursue general damages will carry less weight. Simply put, this amendment provides another avenue for plaintiffs to seek general damages.
What Are Damages?
The term “damages” refers to money a person can sue for after someone else breaches a duty or violates a right that causes the victim physical or economic injury. There are two categories of damages sought in most personal injury lawsuits:
- Economic Damages;
- Non-economic Damages.
Economic damages cover your objective losses, like how much your emergency room visit costs. Non-economic damages, on the other hand, include more subjective losses for complaints of pain and suffering.
Recently, California lawmakers enacted significant changes to the law dictating lawsuits for pain and suffering after the injured party dies.
What is Pain and Suffering?
Pain and suffering damages include emotional and physical harm. Emotional distress is included within this category and may manifest as anxiety, depression, sleep deprivation, and even embarrassment.
In other words, pain and suffering damages in California are the compensation plaintiffs might receive, particularly in personal injury lawsuits, due to the mental anguish and physical pain they suffer from an injury.
Due to the complex and subjective nature of pain and suffering claims, calculating the claim's worth can be complicated. Claimants can prove their pain and suffering by presenting evidence of their injuries.
This evidence may include medical records, witness testimony, and social media posts. In addition, to prove issues of mental suffering, a therapist may provide beneficial expert testimony in the case.
Until recently, pain, suffering, and disfigurement damages were only recoverable by the person who directly experienced the injury. If the victim died before the case's conclusion, the defendant didn't have to pay these damages. Recent amendments to California law have changed this.
Notably, there is not an established set standard that a jury or judge can use to calculate a pain and suffering award. A plaintiff will usually present evidence of physical pain and emotional trauma, and a decision is made on a “reasonable” amount of money for the damages.
Amendments to California Civil Code Section 377.34
When someone is injured and dies, their successors can still bring a lawsuit to recover damages incurred between the injury and the date of death.
There were limits, however, and CCP 377.34 precluded these successors from suing for pain, suffering, and disfigurement.
Effective January 2022, the new version of California Civil Code Section 377.34 says, “In an action or proceeding by a decedent's representative or successor in interest on the decedent's cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement.”
While this change in the law now allows victims' families to seek compensation for the pain and suffering experienced by their deceased loved ones, there is a time limit in place.
California lawmakers will revisit the application of the law after 2026. This expiration date will allow lawmakers to assess the new law's impact and decide if it should stay in place or be further amended.
Arguments for the Amendment
The amendment to California Civil Code Section 377.34 began as Senate Bill 447, intending to curtail bad faith delays by defendants seeking to await the victim's death.
The sentiment was that defendants could reduce the judgment, at least for pain and suffering, if the lawsuit outlived the injured party.
The new law ensures that defendants aren't let off the hook if their victims pass away before the case's final judgment. But, simultaneously, it provides families with the financial award their lost loved one would be entitled to otherwise.
Lawsuits Filed Before the New Law Became Effective
While the amendment impacts victims' rights for claims made after January 1, 2022, some lawsuits initiated before 2022 may still benefit from the new law.
Under California Code of Civil Procedure Section 36, a victim can petition the court to expedite their case if certain conditions are met preferentially.
These conditions include advanced age or severity of a medical condition that might jeopardize the victim's ability to live long enough to see the final judgment.
Preferential trial dates and the new law seek a similar outcome. Accordingly, the new law provides an exception for those cases initiated before 2022, so long as they were given a preferential trial date.
Criticisms of California the New Law
Many argue that the preferential trial date law already served the purpose that SB 447 sought to change.
Critics also argue that the victim only experiences pain and suffering, and as such, the victim is the only individual who should be compensated.
Since pain and suffering damages aren't meant to punish the defendant but instead make the victim whole, the heirs of the victim shouldn't be entitled to recover these damages.
For now, family members of those who pass away before the resolution of their personal injury trial can seek pain and suffering compensation from the defendant.