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Pre-Death Pain and Suffering Statute Enacted

A new law has been signed by the governor changing California law to allow recovery of pain and suffering damages experienced by a person who dies before trial. Historically, California law had prohibited the recovery of pain and suffering damages by anyone other than an injured person who survived until trial. Estates and families had no legal remedies available when family members suffered greatly before dying as a result of the negligent or wrongful acts of others, even when the decedent would have been able to recover damages through a personal injury lawsuit if he or she had survived.

The California Legislature recognized that this type of outcome was unfair and has now made changes to the governing law allowing a tort victim’s estate to pursue damages for the losses the victim suffered before succumbing to his or her injuries.

Available damages in survival actions were previously limited to the financial losses the deceased person suffered as well as any punitive damages that might have been recovered. California Code of Civil Procedure Section 377.34 now permits damages for a decedent’s pain, suffering, or disfigurement to be recovered in an action brought by the decedent’s personal representative in actions filed on or after January 1, 2022, and before January 1, 2026. The amendment requires plaintiffs recovering under this statute to report their awards to the Judicial Council and the Judicial Council will provide this information to the Legislature. The Legislature will evaluate whether to maintain CCP Section 337.34 in its current form or consider amendments to same.

There were two primary arguments made in support of the legislative amendments: (1) that California was among the minority of states that prohibited recovery for intangible damages or damages not economic in nature; (2) the existing law provided a “death discount” that incentivized defendants to delay trials in bad faith until claimants died. Advocates for change in the law relied heavily on the fact that existing law serves to protect bad actors, specifically, corporate defendants and insurers who have sought to exploit the law by purposely delaying court cases in the hopes that the victim will die.

Immediate family members as identified under the probate code have always had the right to recover damages for the losses they have suffered because of the loss of a wife, husband, child or parent. Now, by allowing the decedent’s estate to recover non-economic damages for pre-death suffering, jurors will be permitted to fairly appraise and award damages for pain and distress that actually occurred and for which defendants were previously excused from paying.

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