Survivors may not recover for decedent’s loss of enjoyment of life

By Kathleen B. Fitzgerald

In a survival action, the decedent’s estate may not recover damages for loss of enjoyment of life based on the decedent’s life being cut short, the Washington Supreme Court has held.

In Otani v. Broudy, 151 Wn.2d 750 (Jun. 10, 2004), Dr. David Broudy performed surgery on Yaeko Otani to install a pacemaker. During the surgery, he punctured her aorta. Otani died several hours later without regaining consciousness. Her estate sued Dr. Broudy for malpractice under Washington’s “survival” statutes, which permit the estate to sue for damages that the decedent could have claimed had she lived.

The evidence at trial showed that had the surgery been successful, the 81-year-old Otani would have had a life expectancy of another 7.9 years. The estate prevailed at trial and received a judgment for $496,617.12 that included $450,000 for loss of enjoyment of life. Dr. Broudy appealed, arguing that that element of damages was not available to the estate under the survival statutes.

Dr. Broudy argued that the statutes address two separate types of general damages — pain and suffering, for the discomfort caused by the defendant’s conduct, and loss of enjoyment of life, for the deprivation of the ability to lead a normal life because of the injury. In this case, there were no pain-and-suffering damages because Otani was unconscious at the time of the surgery and never regained consciousness before dying.

Dr. Broudy argued, and the Court agreed, that because “the statute preserves causes of action that a decedent could have maintained had he or she survived,” Otani’s estate could not recover for loss of enjoyment of life “because it is not a loss she experienced during life.”