Otani ex rel. Shigaki v. Broudy

• Decision Date: 10 June 2004
• Docket Number: No. 73531-0.,73531-0.
• Citation: 92 P.3d 192,151 Wash.2d 750
• Court: Washington Supreme Court
• Parties: Yaeko OTANI, Deceased, through her personal representative, Pauline SHIGAKI, Petitioner, v. David R. BROUDY, M.D., Respondent.

92 P.3d 192

151 Wash.2d 750

Yaeko OTANI, Deceased, through her personal representative, Pauline SHIGAKI, Petitioner, v. David R. BROUDY, M.D., Respondent.

No. 73531-0.

Supreme Court of Washington, En Banc.

Argued October 30, 2003.

Decided June 10, 2004.

Dwayne A. Richards, Reed Philip Schifferman, Stritmatter Kessler Whelan et al., Seattle, Paul Lester Stritmatter, Garth Jones, Ray Kahler, Stritmatter Kessler Whelan et al., Hoquiam, for Petitioner.

John Colman Graffe, Johnson Graffe Keay Moniz & Wick LLP, Seattle, Jane Elizabeth Clark, Hoffman Hart & Wagner LLP, Portland, Daniel W. Ferm, Mary H. Spillane, Williams Kastner & Gibbs PLLC, Seattle, for Respondent.

Debra Leigh Williams Stephens, Bryan Patrick Harnetiaux, Spokane, for Amicus Curiae Washington State Trial Lawyers Assoc. Foundation.

JOHNSON, J.

This case involves a survival action arising out of the wrongful death of a decedent caused by medical negligence. The issue we must resolve is whether damages are available to an estate for a decedent's loss of enjoyment of life (LOEL) under RCW 4.20.046(1) or RCW 4.20.060, Washington's survival statutes. Division One of the Court of Appeals reversed a trial court award of $450,000 for LOEL to the decedent's estate. We affirm the Court of Appeals.

FACTUAL AND PROCEDURAL HISTORY

On July 9, 1999, Yaeko Otani (Ms. Otani) underwent surgery to receive a pacemaker. During the surgery, Dr. David Broudy (Dr. Broudy) punctured Ms. Otani's aorta. Ms. Otani died several hours later without regaining consciousness. Ms. Otani was 81 years old at the time of her death.

The personal representative of Ms. Otani's estate (the estate) brought wrongful death and survival actions against Dr. Broudy in King County Superior Court, claiming Dr. Broudy was negligent in causing Ms. Otani's death when he punctured her aorta. The evidence establishes that if the implantation of the pacemaker had been successful, Ms. Otani would have had a normal life expectancy of an additional 7.9 years.

After a bench trial, findings of fact and conclusions of law, Clerk's Papers (CP) at 150-154, and a judgment on the verdict, CP at 147-149, were entered against Dr. Broudy. In the wrongful death action, the court awarded $125,000 in damages to each of Ms. Otani's two adult children as statutory beneficiaries. In the survival action, the court awarded $496,617.12 in damages to the estate, including $450,000 for LOEL and shortened life expectancy, $3,854.39 for burial expenses, and $42,762.73 for medical expenses. CP at 154. Dr. Broudy appealed to Division One of the Court of Appeals, seeking reversal of only the $450,000 in noneconomic damages awarded to Ms. Otani's estate in the survival action. CP at 164. The Court of Appeals held that LOEL was not recoverable by a decedent's estate in a survival action as an element of damages to compensate for the decedent's shortened life expectancy, and reversed the $450,000 award to the estate. Otani v. Broudy, 114 Wash.App. 545, 59 P.3d 126 (2002). The court reasoned that Ms. Otani could not bring a claim for LOEL if she had survived the surgery and, therefore, no such claim survived to her personal representatives.

The estate now seeks reversal of the appellate court's ruling. The estate maintains that the appellate court decision conflicts with a decision of this court¹ and also misinterprets Washington's survival statutes.

The principal issue in this case involves a question of statutory interpretation which is subject to de novo review. Specifically, we must determine whether an estate can recover LOEL damages for a decedent's wrongful death under Washington's survival statutes.

ANALYSIS

As amended by Laws of 1993, ch. 44, § 1, RCW 4.20.046(1) provides that:

All causes of action by a person or persons against another person or persons shall survive to the personal representatives of the former and against the personal representatives of the latter ... PROVIDED, HOWEVER, That the personal representative shall only be entitled to recover damages for pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased on behalf of those beneficiaries enumerated in RCW 4.20.020, and such damages are recoverable regardless of whether or not the death was occasioned by the injury that is the basis for the action.

RCW 4.20.060 states that:

No action for a personal injury to any person occasioning death shall abate, nor shall such right of action determine, by reason of such death, if such person has a surviving spouse or child living, including stepchildren, or leaving no surviving spouse or such children, if there is dependent upon the deceased for support and resident within the United States at the time of decedent's death, parents, sisters or brothers; but such action may be prosecuted, or commenced and prosecuted, by the executor or administrator of the deceased, in favor of such surviving spouse, or in favor of the surviving spouse and such children, or if no surviving spouse, in favor of such child or children, or if no surviving spouse or such child or children, then in favor of the decedent's parents, sisters or brothers who may be dependent upon such person for support, and resident in the United States at the time of decedent's death.

When tortious conduct causes injury or death, three different causes of action may arise. For example, a personal injury claim may be brought by victims for their own damages. Additionally, Washington tort law recognizes two causes of action where a defendant's negligence causes the death of another. Death claims in Washington may be brought pursuant to the wrongful death statutes, RCW 4.20.010 and RCW 4.20.020, and the survival statutes, RCW 4.20.046 and RCW 4.20.060. As mentioned, the decedent's estate brought wrongful death claims and recovered a judgment on those claims. In this case we are asked to review the availability of damages under the survival statutes.

I. OVERVIEW

When a person's death is caused by the negligent act of another person, Washington's survival statutes preserve causes of action that the decedent could have brought had he or she survived. The purpose of awarding damages under the survival statutes is to remedy the common law anomaly which allowed tort victims to sue if they survived but barred their claims if they died. Unlike Washington's wrongful death statutes, the survival statutes do not create new causes of action for statutorily named beneficiaries but instead preserve causes of action for injuries suffered prior to death. Washington's wrongful death statutes, RCW 4.20.010 and RCW 4.20.020,² create causes of action for specific surviving beneficiaries of the deceased. This means that wrongful death claims begin at the death of the decedent for the benefit of the persons named in the statute. Thus, wrongful death and survival actions can be distinguished in that the wrongful death statutes govern postdeath damages of the deceased and the survival statutes govern predeath damages.

II. WASHINGTON'S SURVIVAL STATUTES: RCW 4.20.046(1) AND RCW 4.20.060

The general survival statute, RCW 4.20.046(1), preserves all causes of action that a decedent could have brought if he or she had survived.³ Alternatively, the special survival statute, RCW 4.20.060, is limited to personal injury causes of action that result in death. Specifically, recovery under the general survival statute is for the benefit of, and passes through, the decedent's estate, whereas recovery under the special survival statute is for the benefit of, and is distributed directly to, the statutory beneficiaries.

Here, we are reviewing the availability of damages under Washington's survival statutes. Therefore, this case is one of statutory interpretation. The parties focus their arguments on Washington's general survival statute, as amended in 1993, and Washington's special survival statute to determine whether these statutes allow postdeath damages for LOEL. To reach this determination, we must first examine the legislative history behind the amendment to the general survival statute.

A. Washington's General Survival Statute—RCW 4.20.046(1)

Before 1993, RCW 4.20.046(1) provided that:

All causes of action by a person or persons against another person or persons shall survive to [his or her] personal representatives... Provided, however, That no personal representative shall be entitled to recover damages for pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by a deceased.

Laws of 1961, ch. 137, § 1.

The statute expressly provided that no recovery was allowed for damages suffered by a decedent after tortious conduct but before death occurred. In other words, if a person survived a tortious act for a period of time but later died, any recovery for pain and suffering actually experienced by the decedent was not permitted.

Before the 1993 revisions, we considered the issue of whether damages for LOEL were recoverable under RCW 4.20.046(1) in Wooldridge v. Woolett, 96 Wash.2d 659, 666, 638 P.2d 566 (1981), and we held that they were not. In Wooldridge, the administrator of a decedent's estate brought a survival action under the pre-1993 general survival statute, claiming shortened life expectancy as a recoverable item of damages. Wooldridge, 96 Wash.2d at 660-62,638 P.2d 566. We equated the term "shortened life expectancy" with the impaired ability to enjoy the pleasures of life which a person otherwise would have enjoyed, Wooldridge, 96 Wash.2d at 664,638 P.2d 566, but held that damages in a survival action do not include LOEL. We reasoned that "[t]he loss of life's amenities should be recoverable only by plaintiffs who survive compensable injuries, since such lost pleasures are personal to that individual and essentially represent pain and suffering." Wooldridge, 96 Wash.2d at 666,638 P.2d 566. We further reasoned that shortened life expectancy is relevant "only to the extent it...