Discovery Rule And Medical Malpractice Wrongful Death Actions

The basic question is whether the discovery rule applied to medical malpractice personal injury actions in Massey v. Litton, 99 Nev. 723, 669 P.2d 248 (1983), also applies to medical malpractice wrongful death actions by heirs. We conclude, in accordance with our decision in Massey, that it does.

In Massey, the injured plaintiff lost the use of her foot after an operation. Several years later, she sued Litton for malpractice. Litton argued that NRS 41A.097 barred the action because it was filed more than two years after Massey discovered the physical harm, loss of foot control. However, Massey countered that she did not discover proof of Litton’s negligence until well after she discovered the physical harm, and that the statute’s two-year provision should not actuate until the victim discovers both the injury and the facts suggesting negligence.

In deciding Massey, we considered whether the two-year statute, which begins running upon discovery of the “injury,” should be interpreted as commencing (1) when the physician performed the allegedly negligent operation; (2) when the patient discovered, or should have discovered, the physical harm; or (3) when the patient discovered, or should have discovered, that he or she suffered physicial harm and that it resulted from the health care provider’s negligence. In choosing the third option, we reasoned that the term “injury,” as used by NRS 41A.097, meant “legal injury,” which “encompasses not only the physical damage but also the negligence causing the damage.” Massey, 99 Nev. at 726, 669 P.2d at 250. We concluded that an interpretation providing that the statutory period commenced to run only when a plaintiff discovers or should have discovered “legal injury” would be the most equitable construction of NRS 41A.097. Our ruling was in accord with the rule in many other jurisdictions. See Restatement (Second) of Torts ยง 899 comment e (1979).

We see no reason why the rule in Massey should not also apply, under the statute, to wrongful death actions for medical malpractice. Accordingly, we conclude that the two-year statutory period for wrongful death medical malpractice actions does not begin to run until the plaintiff discovers or reasonably should have discovered the legal injury, i.e., both the fact of death and the negligent cause thereof.

Respondent argues, however, that in Gilloon, 100 Nev. 518, 687 P.2d 80, we considered and rejected the idea that the discovery rule applies to wrongful death actions. In Gilloon, decedent’s daughter filed a wrongful death action in 1981, both as an heir and as a personal representative, alleging that a physician’s malpractice in 1976 caused her mother’s death in 1979. The district court dismissed the action on summary judgment, reasoning that under NRS 41A.097, the injury occurred in 1976, when the doctor allegedly committed malpractice on the mother, and therefore the two-year limitation barred the daughter’s action. We reversed, holding “in an action for wrongful death, the injury contemplated by NRS 41A.097 is the death of the malpractice victim and the two-year period of limitation begins to run from the time of death or the discovery thereof.” 100 Nev. at 519-20, 689 P.2d at 81. Gray argues that this statement was a ruling that in wrongful death actions, the statutory period always actuates at the time of death.

However, an examination of Gilloon in its entirety reveals the flaw in Gray’s characterization of our holding. In Gilloon, the decedent allegedly received negligent treatment in 1976 that led to her death in 1979. The hospital argued that, for purposes of NRS 41A.097, the injury triggering the statute was the alleged negligent treatment that occurred in 1976. The hospital maintained that because Gilloon did not bring her action until after her mother died in 1979, the action was barred by the two-year statute of limitations. We disagreed with this reasoning, noting that the hospital’s construction could bar potential plaintiffs from court “before they had ever had a chance to bring suit.” Gilloon, 100 Nev. at 521, 687 P.2d at 82. Moreover, in Gilloon, we cited with approval the definition of injury adopted in Massey and suggested that we intended it to apply in wrongful death cases:

Our construction is also consistent with our reasoning in Massey v. Litton, 99 Nev. 723, 669 P.2d 248 (1983), in which we held that in an action for malpractice the term “injury” in NRS 41A.097 means legal injury, i.e., the essential elements of a cause of action, and does not refer merely to the physical harm. The death of the decedent being an essential element of the cause of action for wrongful death, there can be no legal injury until the death has occurred.

Id. Notwithstanding this language in Gilloon, Gray argues that our holding adopted a construction of NRS 41A.097 in which knowledge of mere physical harm, death, triggers the statute of limitations. However, such a construction would be inconsistent with the rationale of both Gilloon and Massey, in which we held that legal injury, and not mere physical injury, triggers the 41A.097 statute of limitations.

In essence, what we were saying in Gilloon was that the very earliest that the statute of limitations could begin to run for a wrongful death action would be at death, and not before. This is evidenced by our statement “The death of the decedent being an essential element of the cause of action for wrongful death, there can be no legal injury until the death has occurred.” Gilloon, 100 Nev. at 521, 687 P.2d at 82 (emphasis added). In Gilloon, because the plaintiff discovered the negligence before death occurred, death was the final element necessary to trigger the two-year statute of limitations. However, in the immediate case, the discovery of alleged negligence may not have occurred until after death, and accordingly, death was not necessarily the event which triggered the two-year statute of limitations, as it was in Gilloon.

Although logical consistency with our earlier decisions is important, there are other cogent reasons for applying the discovery rule to wrongful death actions. For example, if we held that death automatically triggers the period of limitations, such a holding could destroy a right of action even before an aggrieved person learns of the existence of the right. A corollary problem would also be created: to avoid a loss of a potentially meritorious claim, plaintiffs’ attorneys may precipitously file premature actions, or even actions that later turn out to be frivolous, in order to avoid the risk of having a meritorious action barred by NRS 41A.097. However, as we noted in Massey:

[W]hen injuries are suffered that have been caused by an unknown act of negligence by an expert, the law ought not to be construed to destroy a right of action before a person even becomes aware of the existence of that right.

Furthermore, to adopt a construction that encourages a person who experiences an injury, dysfunction or ailment, and has no knowledge of its cause, to file a lawsuit against a health care provider to prevent a statute of limitations from running is not consistent with the unarguably sound proposition that unfounded claims should be strongly discouraged. 99 Nev. at 727, 669 P.2d at 251 (quoting Foil v. Ballinger, 601 P.2d 144, 147-48 (Utah 1979)).

Moreover, applying the discovery rule to personal injury actions, but not wrongful death actions, is incongruous and difficult to justify. In Fure v. Sherman Hospital, 380 N.E.2d 1376 (Ill.App.Ct. 1978), after considering defendant’s argument that the discovery rule should be limited to medical malpractice personal injury actions, the court stated “it [is] rather difficult to maintain [a] severe legal distinction which allows the law to give more protection to the wounding of a man than to the ultimate disaster of his death.” Id. at 1384. In Hanebuth v. Bell Helicopter Int’l, 694 P.2d 143 (Alaska 1984), the Alaska Supreme Court agreed with this reasoning: “if the discovery rule is not applied to wrongful death actions, a tortfeasor whose conduct has been so grievous as to cause death [might] be exonerated, while another tortfeasor, guilty of the same conduct except for the fortuity that it merely caused injury, would be held responsible.” Id. at 147.

Loss Of Chance Doctrine

Under this doctrine, the injury to be redressed by the law is not defined as the death itself, but, rather, as the decreased chance of survival caused by the medical malpractice. Herskovits, 664 P.2d at 487 (Pearson, J., concurring); see also Note, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival, 12 Pepperdine L. Rev. 973 (1985) (authored by Patricia L. Andel). Of course, the plaintiff or injured person cannot recover merely on the basis of a decreased chance of survival or of avoiding a debilitating illness or injury; the plaintiff must in fact suffer death or debilitating injury before there can be an award of damages. Additionally, the damages are to be discounted to the extent that a preexisting condition likely contributed to the death or serious debilitation. Specifically, “[t]he amount of damages recoverable is equal to the percent of chance [of survival] lost [due to negligence] multiplied by the total amount of damages which are ordinarily allowed in a wrongful death action.” McKellips, 741 P.2d at 476.

By defining the injury as the loss of chance of survival, the traditional rule of preponderance is fully satisfied. In cases in which the plaintiff prevails, it can be said that the medical malpractice more probably than not decreased a substantial chance of survival and that the injured person ultimately died or was severely debilitated. Specifically, in order to create a question of fact regarding causation in these cases, the plaintiff must present evidence tending to show, to a reasonable medical probability, that some negligent act or omission by health care providers reduced a substantial chance of survival given appropriate medical care. In accord with other courts adopting this view, we need not now state exactly how high the chances of survival must be in order to be “substantial.” We will address this in the future on a case by case basis. There are limits, however, and we doubt that a ten percent chance of survival as referred to in the example in the dissenting opinion would be actionable. Survivors of a person who had a truly negligible chance of survival should not be allowed to bring a case fully through trial. Perhaps more importantly, in cases where the chances of survival were modest, plaintiffs will have little monetary incentive to bring a case to trial because damages would be drastically reduced to account for the preexisting condition.

Additur When The Compensation Is Shockingly Low

The trial court is afforded great discretion in deciding motions for additur. Such a decision will remain undisturbed absent an abuse of that discretion. Harris v. Zee, 87 Nev. 309, 486 P.2d 490 (1971) (abuse of discretion standard of review in remittitur).

Yet in spite of this discretion, we have granted additur on appeal. For example, in Drummond v. Mid-West Growers, 91 Nev. 698, 542 P.2d 198 (1975), this court recognized additur as a viable form of post-judgment relief where a jury award was “clearly inadequate” and a new trial on damages was warranted. In Drummond, a jury award of $9,640.35 was clearly inadequate because it did not compensate the plaintiff for pain, suffering, and future disability associated with the loss of his arm. Id. at 712-13, 542 P.2d at 208. The evidence established that plaintiff had approximately $4,000 of past medical expenses and $4,000 of estimated future medical expenses. Id.

Although Drummond articulates two threshold determinants before additur is available (clearly inadequate and ripe for new trial), in practical application there is only one primary consideration. In essence, if damages are clearly inadequate or “shocking” to the court’s conscience, additur is a proper form of appellate relief. See, e.g., Arnold v. Mt. Wheeler Power, 101 Nev. 612, 614, 707 P.2d 1137, 1139 (1985) (granting additur on appeal where damages did not include pain and suffering or loss of earnings attributable to loss of limb); see also Truckee-Carson Irr. Dist. v. Baber, 80 Nev. 263, 268, 392 P.2d 46, 48 (1964); Shere v. Davis, 95 Nev. 491, 596 P.2d 499 (1979) (where damages are clearly inadequate, new trial is warranted under NRCP 59(a)(5) because jury failed to follow court instructions). Moreover, when damages are so qualified, denial of additur is an abuse of the district court’s discretion and merits reversal.

After examining the prior cases, it is apparent that such decisions rest upon facts where the movant suffered personal physical injury–loss of limbs in particular. There are no reported Nevada decisions examining additur in the context of wrongful death causes of action and associated damages.

Anderson tries to capitalize upon this fact, arguing that loss of a limb and granting additur simply does not translate into granting additur for loss of consortium. Anderson characterizes pain, suffering, and future complications accompanying the loss of an appendage as tangible and measurable with some certainty, whereas loss of consortium is not. This is a distinction without substance.

We conclude that the fundamental additur rubric in Drummond applies to wrongful death and loss of consortium. Pain and suffering attributable to the loss of a child is similar to damages for loss of an appendage. This position is consistent with several jurisdictions outside Nevada that have granted or upheld additur on appeal in the wrongful death context (citations omitted).

Applying fundamental additur considerations to the facts of the instant case, we conclude that zero damages for lost consortium resulting from [the son’s] death is shocking and clearly inadequate. It is a rare life that is monetarily worthless and does not trigger some type of measurable sorrow in a surviving parent. The evidence presented at trial leaves no doubt that Jeremy’s life was not such a rarity.

There is an abundance of uncontroverted evidence establishing that [the son] was an intelligent, supportive, humorous, and outgoing son to the Donaldsons. In addition, there is uncontroverted evidence that his death triggered great grief and suffering in both parents. Contrary to Anderson’s contentions on appeal, nothing in the record justifies the award of zero damages.

Therefore, we conclude that the district court abused its discretion by rejecting the [parents’] motion for additur and alternative motion for a new trial.