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DICKEY v. DAUGHETY11/9/1995
This is a loss of chance of recovery wrongful death action. Ted W. Daughety, M.D., appeals from the district court's calculation of damages after a jury verdict. Richard Dickey cross-appeals the district court's reduction of damages by the percent of lost chance determined by the jury.
The facts will be briefly stated and are not disputed by the parties.
On June 3, 1990, Nancy Dickey was taken by ambulance to a hospital, complaining of severe respiratory distress, which developed into Adult Respiratory Distress Syndrome. She was placed under the care of Dr. Daughety, a pulmonologist.
On July 30, 1990, while attempting to replace a chest tube, Dr. Daughety lacerated Nancy's pulmonary artery. Nancy went into cardiac arrest and died within minutes.
Richard Dickey filed a wrongful death action on behalf of Nancy's heirs-at-law. Richard also brought a survival action as the administrator of Nancy's estate.
The matter was tried to a jury in December 1993. The jury found that Nancy had an appreciable chance of survival before the laceration of her pulmonary artery with no chance of survival after the laceration of the artery. The jury found Nancy had a 30% chance of survival. The jury found Dr. Daughety 100% at fault.
On the survival cause of action, the jury awarded Nancy's estate $10,000 as reasonable medical expenses while awarding nothing for pain, suffering, and mental anguish. On the wrongful death cause of action, the jury awarded $114,000 in pecuniary damages and $270,000 in nonpecuniary damages.
The district court accepted the verdict. The district court multiplied the jury's award of damages by the percent of lost chance of survival and awarded damages of $118,200 to the plaintiff.
This appeal followed.
This case involves the calculation of nonpecuniary damages in a loss of chance medical malpractice action.
K.S.A. 60-1903(a) places a cap of $100,000 on nonpecuniary damages in a wrongful death action. The specific issue is whether nonpecuniary damages are to be reduced by the percent of lost chance before or after the statutory cap on such damages is applied. The defendant argues that the percent of lost chance should be applied after the application of the statutory cap where nonpecuniary damages exceed $100,000. The plaintiff argues the contrary.
This is an issue of first impression in Kansas, and our research has revealed no other jurisdictions which have addressed the issue.
The following charts illustrate the practical effect in this case of either approach:
-------------------------------------------------------------------------- | Illustration 1: Damages calculated applying reduction for loss of chance | | before statutory cap on damages. | | | | Damages Reduction by | | determined percent of | | by the jury lost chance (30%) | | | | Total award of pecuniary | | damages $124,000 $ 37,200 | | | | Total award of | | nonpecuniary damages $270,000 $ 81,000 | | | | Total $394,000 $118,200 | | | | Total award $118,200 | -------------------------------------------------------------------------- -------------------------------------------------------------------------- | Illustration 2: Damages calculated applying statutory cap on damages | | before applying reduction for loss of chance. | | | | Application of | | Damages statutory cap on Reduction by | | determined nonpecuniary percent of lost | | by the jury damages chance (30%) | | | | Total award of pecuniary | | damages $124,000 $124,000 $ 37,200 | | | | Total award of | | nonpecuniary damages $270,000 $100,000 $ 30,000 | | | | Total $394
Page 1 2 3 4 5 6 Kansas Personal Injury Attorneys
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