To: Hospital Executives, Legal Counsel, and Government Affairs Staff
From: Jaclyn Greenberg, Policy Director, Legal Affairs | JaclynG@wsha.org, 206-216-2506
Subject: Changes to Wrongful Death Laws
The purpose of this bulletin is to inform you of an expansion of the state’s wrongful death laws.
The Washington State Legislature recently enacted SSB 5163, which broadly expands both the categories of people who can sue for wrongful death and the types of damages they may recover. These laws, in conjunction with Washington’s existing joint and several liability standard, significantly broaden hospitals’ liability exposure and will materially increase defense costs.
Wrongful death is a civil action brought against someone who caused the death of another. A wrongful death suit most commonly arises in the health care context as a result of medical malpractice. Joint and several liability is a legal requirement when two or more defendants are responsible for the liability. It means that no matter how small an amount of fault a defendant bears, it can be held responsible for 100 percent of the damages.
WSHA, the Washington State Medical Association, the Liability Reform Coalition, and other organizations, worked very hard to minimize the disproportionate impacts of the new laws on hospitals and other so-called “deep pocket” defendants. Unfortunately, an amendment limiting awards to the new classes of beneficiaries to several liability only (rather than joint and several liability) was very narrowly defeated in the House of Representatives 48-50.
The wrongful death laws apply to all individuals and organizations, public or private, including all hospitals, health care facilities and providers.
Hospital executives and legal counsel are encouraged to review the changes under the new laws with risk management professionals. In particular, the law’s retroactive applicability should be reviewed carefully for impact on existing claims. Hospitals should also review insurance coverages, particularly for medical malpractice, in light of the bill’s expansion of liability risk.
SSB 5163 expands Washington State’s wrongful death laws by amending four statutes:
Under the existing general wrongful death statute, RCW 4.20.020, the deceased’s spouse, registered domestic partner and children have priority to bring a suit. If there is no spouse, partner or child, parents or siblings may recover through the personal representative of the deceased—but parents and siblings must reside in the United States and be financially dependent on the deceased. A major change in SSB 5163 is that parents and siblings may recover regardless of whether they reside in the United States and they do not have to be financially dependent on the deceased. SSB 5163 also specifies that all beneficiaries may recover economic and noneconomic damages. Existing law only references damages generally.
Under the existing general survival statute, RCW 4.20.046, the same beneficiary structure as under the general wrongful death statute applies, and SSB 5163 contains the same changes—removal of the US residency and financial dependence requirements for parents and siblings. SSB 5163 also broadens the class of people who may recover. Specifically, economic losses may be recovered on behalf of the decedent’s estate. The reference to economic damages is also new, although case law already recognizes damages for lost earnings, medical and hospital expenses and funeral expenses. SSB 5163 maintains that non-economic damages for pain and suffering, anxiety, emotional distress, or humiliation personal to and suffered by the deceased are recoverable only by the beneficiaries identified in the general wrongful death statute.
Under the existing special survival statute, RCW 4.20.060, the same beneficiary structure and changes to the parent and sibling beneficiaries under the general wrongful death statute apply. SSB 5163 again specifies recoverable damages, stating that beneficiaries may recover the decedent’s “economic losses” as well damages for the deceased’s pain and suffering, anxiety, emotional distress, or humiliation. Existing law does not specify damages, although case law recognizes some economic damages categories and the same non-economic damages as SSB 5163.
Under the existing wrongful death of a child statute, RCW 4.24.010, parents or legal guardians of a deceased minor child may bring suit if her or she regularly contributed to the child’s support or if he or she are financially dependent on a adult child. Under SSB 5163, parents or legal guardians of a deceased adult child no longer need to demonstrate financial dependence on the child to bring suit; rather, they must demonstrate “significant involvement” in the child’s life, which means:
“… demonstrated support of an emotional, psychological, or financial nature within the parent-child relationship, at or reasonably near the time of death, or at or reasonably near the time of the incident causing death, including either giving or receiving emotional, psychological, or financial support to or from the child.”
Under SSB 5163, parents may only recover for the death of a child if that person does not have a spouse, partner or children. Further, parents are entitled to recover for their own losses, regardless of marital status (although only one cause of action arises.)
SSB 5163 makes three changes to categories of damages that parents may recover under the wrongful death of a child statute. It adds “other economic losses” and “loss of the child’s emotional support,” and it replaces reference to the child’s “medical, hospital, medication expenses” with “the child’s health care expenses.” The existing damages categories are otherwise maintained; they include loss of the child’s services and financial support, as well as non-pecuniary losses, namely the loss of love and companionship of the child and for injury to or destruction of the parent-child relationship.
Retroactive. The law is “remedial and retroactive and applies to all claims that are not time barred, as well as any claims pending in any court on the effective date”—July, 28, 2019.
WSHA’s 2019 New Law Implementation Guide
Please visit WSHA’s 2019 implementation guide online, where you will find a list of the high priority laws that WSHA is preparing resources and information on to help members implement the new laws, as well as links to resources such as this bulletin. In addition, you will find the Government Affairs team’s schedule for release of upcoming resources on other laws and additional resources for implementation.
References and Resources
Substitute Senate Bill 5164
RCW 4.20.020 – General wrongful death statute
RCW 4.20.046 – General survival statute
RCW 4.20.060 – Special survival statute
RCW 4.24.010 – Wrongful death of a child statute