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Like the majority of the country, California reportedly might be making pain and suffering damages available in wrongful death cases. Currently, this type of damages is only available in personal injury cases.
Under current California law, compensatory damages for a wrongful death claim can include: lost wages, medical bills, property loss, emotional distress, loss of consortium, as well as funeral and burial costs. Pain and suffering, as aforementioned, is not awarded, though.
Senate Bill 447, introduced by State Senator John Laird (D–Santa Cruz) in Feb. 2021, would allow the survivors of a deceased plaintiff to recover damages for the pain and suffering of the deceased. Sponsored by Consumer Attorneys of California (CAOC) and the Consumer Federation of California, the bill reportedly aims to restore the right of a victim or their loved ones, to pursue human suffering damages even if they pass away before their trial. The senator premised the need for this change on COVID-19 delaying the courts and preventing trials, and to that end amended the original proposal so that it would apply only where the pain and suffering accrued before Jan. 1, 2026.
“When it comes to giving families a chance to recover non-economic damages, California is one of only five states in the entire nation that rewards defendants for prolonging court procedures – leaving victims unable to obtain justice,” Senator Laird reportedly said. “SB 447 will end a decades-old injustice in California by finally extending a victim’s right, and the right of their loved ones, to pursue accountability for human suffering – even if they die prior to case resolution.”
When the California Legislature enacted laws on survival damages in 1961, the insurance industry reportedly lobbied to extinguish damages for human suffering when a plaintiff dies. The legislature, though strongly in favor of preserving these damages, eventually caved under industry pressure. As a result, 60 years later, the existing law creates a perverse incentive for defendants to delay cases and harass ill plaintiffs in the hopes that the plaintiff will die before trial, allowing the wrongdoer to avoid paying any damages or restitution for the human suffering they have caused.
Pain and suffering is a non-economic damage, accounting for a kind of loss of quality of life due to physical and emotional damages triggered by an accident. And since it is not related to financial loss, but rather quality of life, it is not easily calculable.
Non-economic damages are awarded at the court’s discretion and are based on common sense and available evidence. There is no set amount or tried and tested standard for determining a dollar amount. However, there are several contributing factors to calculating compensation for pain and suffering in a personal injury case, which could eventually serve as a reference point for wrongful death claims:
Since most of these factors are accounted for over a course of long periods of time, determining compensation for pain and suffering is only an estimated projection of the amount of money you should be awarded.
However, other supporters of the bill have voiced more general concerns, such as the notion that the current law allows defendants to “get away with” paying less damages simply because the plaintiff dies before trial, thus depriving the victim’s family of the additional compensation. Supporters of the bill include the Consumer Attorneys of California, the Consumer Federation of California, and various unions.
On the other hand, opponents include the California Defense Counsel, California Justice Association, California Medical Association, the California Chamber of Commerce, and associations of health facilities and assisted living facilities. Some of the most common defendants in wrongful death claims include nursing homes and cases of medical malpractice.
If passed, the bill will make wrongful death cases more expensive to settle, no matter whether the death had anything to do with the underlying suit. Senate Bill 447 has been sent to the Assembly to weigh in on this change.