SEPTEMBER 6, 2010 VOLUME 17 NUMBER 28
The question addressed in a ruling last month by the Arizona Court of Appeals seems provocative. In a lawsuit based on the Arizona law prohibiting abuse, neglect or exploitation of vulnerable adults, does the very life of the abused senior have any intrinsic value? The Court’s answer: perhaps, but the lawsuit can not recover damages for the loss of that life.
Mary Winn died about a month after being admitted to Plaza Healthcare, a Scottsdale, Arizona, nursing home, in 1999. Four years later her husband George Winn filed a lawsuit against Plaza, alleging that it had violated Mrs. Winn’s rights under Arizona’s Adult Protective Services Act. Under the APSA, a vulnerable adult who has been abused, neglected or exploited may recover damages suffered as a result of that abuse, neglect or exploitation. Mr. Winn argued (on behalf of his wife’s estate) that he should be able to recover on behalf of his late wife, and that she would have been entitled to actual damages for the loss of her life, as well as punitive damages.
Not so, argued the nursing home. Mrs. Winn obviously could never have collected damages for her own death, and her estate’s recovery was limited to what she could have recovered. In fact, the estate’s possible recovery was less than her damages, since any claim for pain and suffering she experienced at the end of her life ended with her death. With no actual damages to recover, her estate could not seek punitive damages.
Mrs. Winn’s estate argued that her life had some “intrinsic” value, and that it should be recoverable. The estate conceded that she was elderly and ill when she arrived at Plaza Healthcare, and that she could not be expected to earn a salary given her age and condition. But, insisted the estate’s lawyers, a human life has some inherent value.
The trial court agreed with the nursing home, and limited the estate’s proof to just actual damages. After an informal arbitration proceeding (the estate conceded that the remaining damages were less than $50,000, and therefore subject to mandatory arbitration rules) a judgment against was entered in favor of Plaza Healthcare.
The Arizona Court of Appeals reviewed the trial court’s ruling and agreed. There is no cause of action under the vulnerable adults statute, ruled the appellate judges, for the “intrinsic or inherent value” of a deceased claimant’s life. Mrs. Winn’s estate — and her husband — recovers nothing from Plaza Healthcare. Estate of Winn v. Plaza Healthcare, Inc., August 10, 2010.
To be fair, the appellate court did not rule that there is no value to the life of an elderly, disabled and vulnerable senior. All the ruling says is that there is no right to recover under the Arizona Adult Protective Services Act for the loss of life itself.
Does that mean that Mr. Winn had no claim for his wife’s alleged mistreatment? Not necessarily — he might have been able to file his lawsuit on his own behalf if he had acted more quickly. By the time he filed it had been more than four years since his wife’s death — too late for any wrongful death action but not too late for a viable lawsuit under the Adult Protective Services Act, which had a much longer statute of limitations.
There is another interesting footnote to the Winn case. Last month’s decision from the Court of Appeals is not the first time Mrs. Winn and her estate have been before Arizona appellate judges. In fact, her case had been appealed twice before — once in 2006/2007, and again a year later. The first trip through the appellate system involved the trial judge’s dismissal — ultimately reversed by the Arizona Supreme Court — on the basis that a probate proceeding filed more than two years after the decedent’s death did not permit filing of a lawsuit in the estate’s name. A year later the Court of Appeals dismissed an attempted appeal from the trial judge’s initial refusal to allow any recovery for the inherent value of Mrs. Winn’s life. That appeal had to wait for final resolution of the entire lawsuit, which was accomplished before the current (and probably final) appeal.
Doctors decided they needed to implant a pacemaker in Yaeko Otani, age 81. Had the surgery been successful, she would have had a life expectancy of another eight years. Tragically, surgeon David Broudy accidentally punctured her aorta during the surgery, and she died without ever regaining consciousness.
Ms. Otani’s two children and her estate filed suit against Dr. Broudy for wrongful death. After hearing the evidence Judge Sharon Armstrong entered a verdict in favor of the two children for $125,000 each, and in favor of the estate for another $450,000 for “loss of enjoyment of life.” In addition, Dr. Broudy was ordered to pay over $45,000 in medical and funeral costs.
Although he did not challenge the amounts awarded to Ms. Otani’s children, or the medical and funeral expenses, Dr. Broudy did appeal the $450,000 judgment in favor of the estate. His attorneys argued that a “wrongful death” action can not be brought on behalf of an estate.
Under the “common law” principles inherited by U.S. states from their legal predecessors, the claim of damages for wrongful death did not exist. Personal injury claims usually lapsed with the death of the injured party, and by definition the primary victim of a wrongful death could not survive the injury—so the claim was viewed as dying with the victim.
To remedy what was seen as an injustice, state legislatures individually adopted laws that allow survivors to bring a lawsuit for wrongful death of a parent, child or spouse. Most states permit the action to be brought by the estate of the victim, but make clear that the claim belongs to the survivors. Philosophically, the wrongful death action seeks compensation not for the loss of one’s life but for the loss of companionship, support and assistance of a loved one.
That, argued Dr. Broudy, was why Ms. Otani’s estate should not be entitled to receive any money for the loss of her life. While her children could bring their own claims, and the estate could seek reimbursement of medical and funeral expenses, Ms. Otani’s estate had no cause of action, argued Dr. Broudy.
The Washington State Court of Appeals agreed. Since Ms. Otani died without ever regaining consciousness, and because there was no evidence that she suffered any pain as a result of Dr. Broudy’s negligence, her estate was not entitled to any additional damages. A state law which allowed some legal actions to survive the victim’s death did not create any new cause of action, ruled the judges. Estate of Otani v. Broudy, December 16, 2002.
Probate, guardianship and conservatorship proceedings can be difficult to navigate. Most people utilize lawyers to help with the process, and are well served by having legal representation. Lawyers often serve as protectors of the beneficiaries of those proceedings, and help steer individuals away from mismanagement of estate funds—or worse. Sometimes, though, lawyers can be the problem.
That was the case with Richard D. Goldberg, an Ohio attorney. Mr. Goldberg represented estates and survivors in “wrongful death” cases, in which it was alleged that someone was responsible for the death of an individual. In a number of cases Mr. Goldberg apparently took the money from lawsuits and used the proceeds for his personal living expenses.
In early 1999 the local probate judge in Mahoning County, Ohio—the Hon. Timothy P. Maloney—began his own investigation into Mr. Goldberg’s handling of the wrongful death claims. For the next year Mr. Goldberg was uncooperative with either the judge’s inquiry or the State Bar disciplinary proceedings. In June, 2000, apparently frustrated with his inability to recover money taken by Mr. Goldberg, the probate judge acted on his own initiative.
Judge Maloney first issued an order that the bailiff should search for and seize any property or financial records the bailiff could locate. The next day the bailiff and several law enforcement officers arrived at Mr. Goldberg’s residence and, over the objections of Mr. Goldberg’s wife and daughter and Mrs. Goldberg’s attorney (who arrived shortly thereafter), proceeded to videotape, photograph and catalog the contents of the house. They took four Rolex watches, two Piaget watches, three oriental rugs and a personal computer with them. They also searched and locked a separate warehouse.
Mrs. Goldberg asked the Court of Appeals to quash Judge Maloney’s order and return the impounded items. When that court agreed with her, the probate judge appealed to Ohio’s Supreme Court.
The Supreme Court acknowledged that Mr. Goldberg’s breach of duty harmed his clients and the decedents’ survivors. The Court noted, however, that wrongful death proceeds are not an asset of the decedent’s estate—they belong directly to the survivors. Furthermore, reasoned the Court, Judge Maloney’s power as probate judge did not include the ability to seize property before a final judgment was entered—his power was limited to arresting individuals like Mr. Goldberg and ordering that he be brought before the court to answer questions. While Mr. Goldberg’s actions can be challenged in a proper lawsuit, the probate court did not have power to simply seize his assets pending resolution of that lawsuit. State ex rel. Goldberg v. Mahoning County Probate Court, Sept. 5, 2001.
