United Security Services, Inc., (111) which found a "wrongful death statute
eliminating claims for pain and suffering of the decedent" to be constitutional "because the act provided a suitable alternative to recovery of damages for such claims by substituting therefor the right of close relatives to recover for their own pain and suffering occasioned by loss of a loved one." (118)
Plaintiffs contended that the wrongful death statute
of limitations was in violation of the Texas Constitution's open courts provision if it did not allow use of the discovery rule.
The Matsuyama court recognized that wrongful death actions did not traditionally encompass loss of chance of survival claims, yet it held that such claims are "sufficiently akin to wrongful death claims as to be cognizable under the wrongful death statute
..." (101) The court reasoned since medical science has evolved and developed to a point where it is possible to quantify how much the malpractice damaged a patient's prospects for survival, and given the strong public policy favoring compensation for victims of medical malpractice, recovery for the loss of chance of survival should be accepted into the common law of wrongful death.
(23) The decedents' survivors were denied an adequate remedy, which provided additional impetus for the passage of a federal maritime wrongful death statute
The issue on appeal was whether loss of chance claims were cognizable in Massachusetts and, specifically, whether they were actionable under the Massachusetts wrongful death statute
. (327) The court held that loss of chance claims were actionable, and that Massachusetts was joining the majority of states that have endorsed the doctrine.
1983) (finding that, in fight of legislative objectives, a fetus was a "person" under the Missouri wrongful death statute
(43) The New York wrongful death statute
, like the majority of laws, restricts recovery to named classes of beneficiaries, including spouses but not unmarried partners.
In the Cahoon case, for example, the Indiana Supreme Court held that its recognition of loss of chance through the increased risk of harm approach was entirely consistent with the state's wrongful death statute
, which, the court stated, did not "spell out what is meant by causation and that the increased risk of harm standard was an appropriate causation standard." The court adopted the holding of the intermediate appellate court: "The intent of the wrongful death statute
was to allow an action to be brought by the decedent's personal representative against a defendant who may be held legally liable for the death, regardless of the mechanism of liability." (25)
(9.) Alabama's wrongful death statute
, codified at ALA.
Beale.(33) The grand jury indicted the defendant with the murder of his wife and unborn child,(34) specifically charging that he fired a "shotgun with intent to destroy the unborn child."(35) The Supreme Court of North Carolina held that the definition of a victim under the murder statute did not include an unborn viable fetus.(36) Despite the court's precedent recognizing a viable fetus as a person within the state's wrongful death statute
,(37) the court distinguished the legislative actions and histories between the wrongful death and murder statutes.(38) The court relied upon DiDonato v.
47 (punitive damages received under an Alabama wrongful death statute
are includable in gross income).
But Miles' focus on the wrongful death statute
(2) On August 18, 2015, the court issued contradictory opinions centered on the statutory interpretation of the wrongful death statute
If a state's wrongful death statute
does not provide that the two claims are independent, or the statute requires payment of the decedent's creditors before an allocation, all bets are off concerning the application of Bradley to reduce a Medicare claim.
The court held, inter alia, that even if the plaintiff could not proceed under the Child Wrongful Death Statute
(CWDS) she should be allowed to proceed under the Medical Malpractice Act.