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Changed law enables families of survivors to receive damages for pain and suffering

This week’s question comes from Kate A. from Oakland: I read that Senate Bill 447 was important to many people who may have a personal injury case. Why is it significant?

Dear Kate: Thank you for reaching out and for your question.

Senate Bill 447, signed by Gov. Gavin Newsom on Oct. 1, changed California law to allow for recovery of a decedent’s non-economic damages for pain, suffering and disfigurement by a decedent’s personal representative or successor in interest after a decedent’s death.

Under California law, a personal injury action brought by someone who suffers a bodily injury can recover, among other damages, non-economic damages for their pain and suffering. By contrast, under the prior law in California, in an action brought by a decedent’s survivors for someone’s death from an injury, non-economic damages for their pain, suffering and disfigurement suffered before death was not recoverable, acccording to California Code of Civil Procedure Section 377.34.

More specifically, the law previously limited recoverable damages to economic damages only if a plaintiff died before a judgment was entered. In other words, when a person died from an injury, the decedent’s successors or heirs could file a survival lawsuit to recover damages that the decedent would have been entitled to from the time of the injury up until the time of their death.

Damages recoverable in these cases were limited to monetary losses the person suffered after the injury but before his or her death. Such damages included medical bills, lost wages and punitive or exemplary damages. Recoverable damages in such cases, however, did not include compensation for pain, suffering or disfigurement.

SB 447 changes this rule. Now the California Code will no longer exclude non-economic damages and allows a decedent’s personal representative to recover damages for a decedent’s pain, suffering or disfigurement if the cause of action or proceeding was granted a preferential trial date before 2022, or if it was filed between Jan. 1, 2022 and Jan. 1, 2026.

The change adds an important category of damages that can be recovered, thereby potentially increasing the amount of damages that can be rightfully awarded in survival actions.

State Sen. John Laird introduced SB 447. Its proponents noted that most U.S. states allow for recovery of non-economic damages for pain and suffering even after a plaintiff dies, and that California was one of only five states that precluded a decedent’s personal representative or successor in interest from recuperating non-economic damages. Such a rule gave defendants in lawsuits incentive to delay trials because they would not have to pay pain and suffering damages if a plaintiff died before a verdict could be reached. In other words, defendants often would take every opportunity to put off trials, hoping that the plaintiff would die before the case came to court.

Further, supporters of SB 447 argued that limiting damages was arbitrary and manifestly unjust and unfair.

The law applies to medical malpractice actions, but the Medical Injury Compensation Reform Act of 1975 cap still applies to non-economic damages for pain and suffering damages in a medical malpractice claim.

SB 447 does not impact elder abuse cases, which permit for pre-death pain and suffering damages up to $250,000 in enhanced remedies actions. But it does apply to some types of elder abuse claims, including but not limited to, health and safety violations. SB 447 applies to many other personal injury and employment cases.

Important note: A plaintiff who recovers damages for pain, suffering or disfigurement between these new specified dates must provide the Judicial Council with a copy of the judgment, consent judgment or court-approved settlement agreement entitling the plaintiff to the damages and a cover sheet detailing the date the action was filed, the date of the final disposition of the action, and the amount and type of damages awarded, including economic damages and damages for pain, suffering or disfigurement.

The reason for this requirement is because the Judicial Council must submit a report to the legislature by Jan. 1, 2025 detailing information received for all judgments, consent judgments, or court-approved settlement agreements obtained from Jan. 1, 2022, to July 31, 2024.

For more information about the law, visit https://leginfo.legislature.ca.gov/.

Christopher B. Dolan is the owner of Dolan Law Firm, PC. Allison Stone is a senior associate attorney in Los Angeles. We serve clients throughout the California from offices in San Francisco, Oakland and Los Angeles. Email questions for future articles to help@dolanlawfirm.com. Each situation is different, and this column does not constitute legal advice. We recommend you consult an experienced trial attorney to fully understand your rights.

Christopher B. Dolan

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