New California Law Allows Families to Recover Pain and Suffering Damages

In 2020, a construction manager with a long and impressive career died of mesothelioma. At the time of his death, he was fighting for justice in court. His illness was caused by decades of asbestos exposure on the job. He had filed a personal injury lawsuit against his employer, demanding compensation for his pain, suffering, and economic damages.

Unfortunately, the victim died before the case concluded. When he passed away, his family became unable to recover pain and suffering damages in his place. They could only hold his employer responsible for economic damages such as medical bills and lost income.

Pain and suffering damages can add up to hundreds of thousands or even millions of dollars, with no maximum cap in California. In many personal injury cases, pain and suffering damages could far outweigh the compensation you might get for economic damages.

Until just recently, California was one of only five states that blocked surviving family members from recovering pain and suffering damages on behalf of personal injury victims who passed away before their cases were resolved.

Unfortunately, this policy became a source of great injustice in many cases. A defendant could save millions of dollars by using delay tactics to “wait out” a victim’s illness. Once the victim died, their family wouldn’t get nearly as much in compensation.

In October 2021, the California Senate passed Bill No. 447 (SB 447), which gives the survivors of deceased personal injury victims the right to sue for pain and suffering on the victim’s behalf. This new law goes into effect on January 1, 2022.

What Are Pain and Suffering Damages?

When you file a personal injury lawsuit, you can recover monetary compensation for three types of damages: economic damage, non-economic damages, and punitive damages.

“Pain and suffering” falls under non-economic or general damages.

• Economic (or specific) damages cover actual monetary losses that a person has suffered because of an injury, such as medical bills (present and future), the cost of assisted care if necessary, the price of replacing or repairing lost or damaged property, as well as lost income from becoming unable to work because of an injury. Economic damages are the most straightforward to calculate.
• Non-economic (or general) damages cover subjective, non-monetary losses such as physical and mental pain and suffering, emotional distress, disfigurement, and loss of enjoyment of life. Because pain and suffering are subjective to each individual, these damages can be more difficult to accurately quantify.
  
  California courts will look at how an injury has affected the victim’s life and day-to-day functioning to calculate non-economic damages. The court could also get expert witness testimony from medical and mental health professionals to gauge a victim’s level of physical and mental suffering. The more severe and life-altering the injury, the greater the potential for pain and suffering damages.
• Punitive damages are intended to punish bad actors for especially reckless, dangerous, intentional, or malicious behavior. They are less about the victim and more about the actor responsible for the victim’s injuries. Punitive damages are also meant to deter the bad actor or anyone else from repeating similar bad behavior. Punitive damages might be appropriate if the person responsible knew of the dangers, knowingly hid the danger, or failed to take steps to protect dangerous conditions from harming the victim.

Previously in California, families of victims who died from their injuries could recover only economic and punitive damages on behalf of their loved ones. With the new SB 447 law starting in 2022, victims’ families can recover economic, punitive, and non-economic damages.

Essentially, a victim’s family becomes entitled to the full compensation that the victim would have gotten in a personal injury lawsuit if they had not passed away.

How California’s New SB 447 Law Helps Families of Victims

The COVID-19 pandemic worsened the issue of court delays, as California courts had to shut down and postpone many trial dates for public health reasons. Personal injury victims had to wait even longer for justice over the pandemic – and some passed away during this time.

Civil court delays can lead to serious hardship for victims and families. Victims may need costly medical treatment while they wait for their case to get resolved. Bad actors might try to use court delays to incentivize victims to settle sooner for much less money than they’re really owed. A personal injury lawyer can help protect you and fight back against such predatory behavior.

California’s new SB 447 law helps families of personal injury victims by:

• Making sure families get the full compensation that victims were owed even if the victim themselves passes away before their case settles, and
• No longer incentivizing the defendant to delay court proceedings in order to “wait and see” if the victim will pass away so that they can save money.

Some illnesses and injuries don’t become apparent right away. Toxic exposure could build up over time and the health effects might not appear until years down the road. Once diagnosed, the effects on a victim’s health could be rapid and drastic.

For example, in cases of mesothelioma from asbestos exposure, victims may only have months or a few years to live once they receive their diagnosis. A personal injury lawsuit could go on for a couple of years or more – especially if the guilty party tries to delay the case. In simple terms, it’s downright unfair for the guilty party to avoid paying for a victim’s pain and suffering only because they passed away before their case gets settled. The victim still experienced that pain and suffering – and the guilty party should be responsible for righting that wrong.

Under the new law as of 2022, companies and individuals responsible for injuring others can no longer delay and wait for the victims of their actions to pass away in order to save money. Instead, they will be more incentivized to take responsibility and settle within a reasonable time.

Pain and suffering damages could significantly help a victim’s family after their passing. The new law helps ensure that a victim’s pain and suffering won’t be forgotten – that the person responsible for their suffering pays fully for the harm that they’ve done.

For help with you or your loved one’s personal injury case, call the San Diego offices of Harlan Law at (619) 870-0802 or use our contact form now. We vigorously fight for you so that you and your family can get the maximum possible recovery for your injuries.