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Banks v. Sunrise Hospital12/17/2004
wrongful death claim, the legal injury here is death. Because the record reveals that James was alive at the time of this appeal, Sunrise's argument is without merit.
We have previously held that a wrongful death claim pertains to the injury suffered by the heirs rather than by the decedent. A California appellate court held that, where a judgment did not include damages for wrongful death claimants, the settlement amounts to the potential wrongful death claimants could not be used to offset the judgment against the non-settling defendant. Here, the jury's award did not include damages for the potential wrongful death claimants. Nor does the record reveal that the jury considered these claims. Although the record indicates that the potential wrongful death claimants were signatories on the settlement agreements, the record is devoid of any evidence indicating that the potential wrongful death claimants benefited from, were entitled to or received any portion of the settlement amount. It appears that the entire settlement amount went to Banks. Therefore, Banks would have received double recovery if the district court had failed to reduce the jury award by the settlement amounts.
CONCLUSION
We conclude that Sunrise has failed to demonstrate error that would entitle it to a reversal or a new trial. We also conclude that Banks has failed to demonstrate that the reduction of the jury award was improper. Accordingly, we affirm the judgment and order of the district court.
SHEARING, C.J., ROSE, GIBBONS and DOUGLAS, JJ., concur.
MAUPIN, J., with whom BECKER, J., agrees, concurring in part and dissenting in part:
The majority opinion today addresses a myriad of undecided issues concerning tort litigation in Nevada. These include duties of a potential defendant to preserve evidence, the scope of expert testimony concerning preservation issues, the scope of the doctrine of res ipsa loquitur, whether Nevada recognizes the concept of hedonic damages, whether expert testimony is admissible in aid of a claim for hedonic damages, and the extent to which defendants in different scenarios are entitled to equitable offsets for pretrial settlements. I agree that expert evidence is admissible on questions of evidence spoliation, that general damage awards may include hedonic damages for conscious loss of enjoyment of life, that expert testimony may assist the fact-finder in resolving hedonic damage claims, and that defendants are entitled to equitable offsets in negligence actions regardless of whether the settlement monies are paid pursuant to an arbitration agreement and regardless of whether a defendant at trial argues that the settling defendant was at fault. I conclude, however, that the district court erred in its sanction instruction concerning preservation of evidence and in its application of the doctrine of res ipsa loquitur. In my view, these two errors require reversal and remand to the district court for retrial.
DISCUSSION
In light of Sunrise's failure to preserve either the Narkomed II anesthesia machine or records that would enable Mr. Banks's attorneys to trace the machine for testing, the district court gave the following instruction:
Sunrise Hospital had a duty to identify all of the anesthesia equipment and monitors which were used in the Banks surgery. Defendant Sunrise failed in this duty and because of its failure, no independent review or inspection of the equipment could ever be done. You may infer that had the equipment been preserved and tested that it would have been found to be not operating properly.
In this instruction, the district court applied an absolute pre-litigation
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