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Washington Law Review



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damages, survival actions


Survival statutes have been adopted to avoid the effect of common law rules preventing claims for the tortious death of a human being. These statutes give the personal representative such causes of action on behalf of the decedent's estate as the decedent would have had were he still alive. The question the statutes do not answer, however, is the effect of the death of a party on the measure of damages. The Washington Supreme Court's decision in Warner v. McCaughan illustrates the problem. Warner arose out of the death of a twenty-one year old college student. Alleging that the death was caused by improper diagnosis and care and by administration of unsafe drugs, her parents, individually, and her father, as administrator of her estate, brought suit for damages against the doctor, hospital, and pharmaceutical company on the grounds of negligence and breach of warranty. The parents' individual claims were dismissed because the parents were not dependents of the decedent, but the estate's claim was entertained. One of the items of damage claimed by the estate was "disability in consequence of a medical condition" caused by the defendants' tortious acts and resulting in the decedent's death. This claim presented the major issue of the case: whether the prohibition in the general survival statute against recovery for pain and suffering7 prohibited recovery for the decedent's "disability." The court rejected the defendants' argument that the statutory prohibition meant that all claims personal to the decedent abated with her death8 and held that the statute allows "the broad common-law claim for personal injury," except for pain and suffering. The principal question remaining, which the Warner court did not fully answer, is how these damages for physical injury are to be measured in a tortious death case. The purpose of this article is to discuss the factors relevant to the damages issue and to suggest appropriate standards for measuring them.