Immunity from Wrongful Death Liability: How Michels Fails to Compensate: Michels v. Danrad.

• Author: Buchanan, Kevin
• Position: Case note

1. INTRODUCTION

   Wrongful death statutes originated out of a need to compensate the family of a decedent "whose life was wrongfully taken." (1) Closely related to wrongful death statutes are survivorship statutes, which allow for the transmission of tort claims after the death of one or more of the parties. (2) These statutes help address the once common maxim that it's cheaper to kill a man than to maim him. (3) Today, all fifty states have both wrongful death and survivorship statutes. (4)

   In Michels v. Danrad, the Supreme Court of Missouri declined to allow wrongful death claims where a defendant's negligence accelerates the death of a terminally ill decedent. (5) However, the court determined that a decedent's family may have a survivorship claim for personal injuries not resulting in death. (6) In doing so, the court perpetuated a trend that fails to accomplish the intended goal of wrongful death statutes: to compensate a decedent's family. (7)

   Part II of this Note looks at the facts and holding of Michels. Part III examines the wrongful death and survivorship claims as well as the past precedent of such claims in the context of medical malpractice and improper diagnoses. Part IV then introduces the wrongful death and survivorship issues presented in Michels. Finally, Part V distinguishes Michels from precedent and argues in favor of the dissent.

2. FACTS AND HOLDING

   Joseph Mickels, Sr., visited the Hannibal Clinic in Hannibal, Missouri, on December 8, 2008, "complaining of numbness and tingling in his left arm and leg, blurred vision, and headaches." (8) An MRI (9) was conducted on Mr. Mickels's brain. (10) Raman Danrad, a radiologist and the defendant in the instant case, reviewed the results of the MRI on December 12. (11) Dr. Danrad concluded that Mr. Mickels's MRI indicated no signs warranting a medical diagnosis. (12)

   On February 17, 2009, Mr. Mickels went to Hannibal Regional Hospital suffering from what was only described as an "altered mental status." (13) That same day, a computed tomography ("CT") scan (14) was conducted on Mr. Mickels's brain. (15) Again, Dr. Danrad reviewed the results of this scan. (16) Based on the CT scan, Dr. Danrad diagnosed Mr. Mickels with a terminal and incurable brain tumor. (17) On June 12, 2009, Mr. Mickels died as a result of this tumor, despite having undergone immediate treatment following his diagnosis. (18)

   On June 7, 2012, Ruth Mickels, Joseph Mickels, Jr., Billy Joe Mickels, Brittany Mickels, and Jennifer Unglesbee ("Appellants") filed suit against Dr. Danrad pursuant to Missouri's wrongful death statute, Missouri Revised Statutes section 537.080. (19)

   Appellants alleged that, although "Mr. Mickels certainly would have died ... with or without Dr. Danrad's alleged negligence," Mr. Mickels would not have died on June 12, 2009, had Dr. Danrad properly diagnosed the brain tumor following the initial MRI on December 8, 2008. (20) Mr. Mickels's treating oncologist testified that while the tumor "was incurable when it was found and it would have been incurable at the time" of the initial MRI on December 8, 2008, it was "more likely than not that if [the tumor] had been discovered earlier... [Mr. Mickels] would have lived an additional six months on average." (21)

   The trial court granted summary judgment in Dr. Danrad's favor and dismissed Appellants' petition. The court found that Appellants could not establish that Dr. Danrad's negligence caused Mr. Mickels's death in accordance with section 537.080.1. (22) Appellants appealed the trial court's judgment. (23) The appeal was transferred to the Supreme Court of Missouri under article V, section 10 of the Missouri Constitution. (24)

   The Supreme Court of Missouri vacated the trial court's grant of summary judgment and remanded the case. (25) In doing so, the court held that because Dr. Danrad's failure to diagnose Mr. Mickels's incurable brain tumor was not the cause of Mr. Mickels's death, Appellants did not have a cause of action against Dr. Danrad for wrongful death under section 537.080.1. (26) However, the court held that Appellants did have a cause of action against Dr. Danrad under Missouri's personal injury survivorship statute, Missouri Revised Statutes section 537.020. (27)

3. LEGAL BACKGROUND

   1. Wrongful Death and Survivorship

      Historically, common law tort actions involving death suffered from two primary limitations that led to major reform. (28) First, common law tort actions were said to "die with the person of either the plaintiff or the defendant." (29) Such a policy prevented "a deceased tort victim's own existing cause of action... [or] a deceased wrongdoer's once existing liability" from transferring "to the personal representative of either of them." (30) Survivorship statutes that allowed for "the transmission of tort claims or tort liability at death" were enacted to address this limitation. (31)

      The second limitation was that "the death of a human being was not regarded as giving rise to any cause of action at common law on behalf of a living person who was injured by reason of the death." (32) Due to this limitation, a plaintiff had few rights "against another living person for having caused the death of a third party whose life was of value to the plaintiff." (33) For example, if a defendant caused a person's death, the decedent's family could not make a claim against the defendant. (34) Wrongful death statutes sought to address this limitation by "establishing a separate cause of action for the benefit of designated members of the family of a person whose life was wrongfully taken." (35) Additionally, such statutes solved the problem of "the much-criticized rule of the common law which made it 'more profitable for the defendant to kill the plaintiff than to scratch him'" by preventing defendants from escaping liability after the death of a plaintiff. (36)

      All fifty states now have survivorship and wrongful death statutes, although their forms vary. (37) In Missouri, "the survivorship statute and the wrongful death statute are mutually antagonistic." (38) "[W]hen the injury alleged did not cause death," Missouri's survivorship statute, section 537.020 applies. (39) Section 537.080, Missouri's wrongful death statute, "applies when the injury did cause death." (40)

      Missouri's current survivorship statute provides that upon the death of a party to an action for personal injury, a cause of action for personal injury transfers to the personal representatives of the deceased. (41) In other words, if a plaintiff has a personal injury claim but dies before the matter is resolved, the plaintiff's personal representatives may go forward with the claim under the survivorship statute. (42) Missouri's current wrongful death statute provides that when a person's death results from the acts of a defendant, the defendant is liable for damages. (43)

      Damages arising under the survivorship statute are not defined. (44) For claims arising under Missouri's survivorship statute, courts have held that plaintiffs are "entitled to recover only such damages as accrued before [the decedent's] death and which he could have recovered had he survived." (45) This recovery may "includ[e] damages for physical and mental pain and suffering; loss of wages, if any, from the [event] until his death; and medical and hospital expenses resulting from the injuries sustained." (46)

      Under section 537.090, wrongful death claims under section 537.080 may seek "such damages as the trier of the facts may deem fair and just." (47) In addition to "pecuniary losses suffered by reason of the death," claimants may also be awarded "the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those on whose behalf suit may be brought have been deprived by reason of such death." (48)

      Damages under Missouri's wrongful death statute are consistent with the "pecuniary loss rule," which is the majority rule for damages for wrongful death. (49) A problem exists with the pecuniary loss rule in that it "effectively values human life solely in terms of the monetary benefits the decedent could have been expected to bestow upon his or her dependents" while "attach[ing] no monetary value to life itself by not accounting for the decedent's lost life. (50) In doing so, "[t]he pecuniary loss rule views humans as economic units, not as sentient beings who live for purpose and pleasure." (51) Furthermore, Missouri courts, along with courts in twenty-seven other states, have rejected awarding damages for grief and mental anguish in wrongful death cases. (52)

      In O'Grady v. Brown, the Supreme Court of Missouri described three underlying goals of Missouri's wrongful death statute. (53) The first of these goals is "to provide compensation to bereaved plaintiffs for their loss." (54) Second, the wrongful death statute should "ensure that tortfeasors pay for the consequences of their actions." (55) Finally, the statute should serve "generally to deter harmful conduct which might lead to death." (56)

   2. Medical Malpractice

      There are three categories of malignant diseases that are commonly encountered in medical malpractice actions. (57)

      In the first category, a "cure is probable at the outset, but, as a result of negligence, the chance of eradicating the disease has been lost." (58) For example, in Mezrah v. Bevis, a physician failed to diagnose a plaintiffs breast cancer. (59) The court found for the plaintiff because expert testimony demonstrated that, if properly diagnosed, the "plaintiffs breast cancer 'more likely than not' would have been completely cured." (60)

      In the second category, while the patient is living with an incurable disease, the patient's "life expectancy, already shortened by the disease, has been reduced even further through negligence." (61) For example, in Noor v. Continental Casualty Co., a physician delayed a biopsy of the plaintiff's breast lump for...