All too often, medical malpractice results in the death of a patient. In West Virginia, recovery for the wrongful death of a patient is governed by statute. Under West Virginia law a wrongful death claim must be prosecuted by the estate. This means that the lawsuit must be brought by the personal representative of the deceased person who has been duly appointed as the personal representative. The personal representative is either the executor/executrix or the administrator/administratrix of the estate. See W.Va. Code § 55-7-6. The damages which may be awarded by the jury include, but may not be limited to the following: (A) sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, and advice of the descendant; (B) compensation for reasonably expected loss of (i) income of the descendant, and (ii) services, protection, care and assistance provided by the descendant; (C) expenses for the care, treatment and hospitalization of the descendant incident to the injury resulting in death; and (D) reasonable funeral expenses. Loss of income of the descendant may include the reasonably expected loss of earnings, loss of retirement benefits, and loss of Social Security income.

Even though a medical malpractice action for wrongful death is brought by the personal representative of the estate, the persons entitled to share in the recovery are not governed by either the deceased persons’ will or the laws of descent and distribution. Rather, a jury or the court may direct in what proportion the damages shall be distributed to the surviving spouse and children, including adopted children and stepchildren, brothers, sisters, parents and any persons who are financially dependent upon the descendant at the time of his or her death or would otherwise be equitably entitled to share in such distribution. See W.Va. Code § 55-7-6(b).

Under Kentucky law, an action for wrongful death must be prosecuted by the personal representative of the deceased. KRS § 411.130. The measure of damages in an action for wrongful death is the amount of loss to the estate of the deceased caused by the destruction of the deceased’s power to earn money. Funeral expenses are also recoverable in a wrongful death action in Kentucky. Birkenshaw v. Union Light, Heat & Power Co., 889 S.W.2d 804-806 (Ky. 1994)

Under Kentucky law, the damages recovered in a wrongful death action shall be for the benefit of and go to the kindred of the deceased in the following order:

(a) If the deceased leaves a widow or husband, and no children on their descendants, then the whole to the widow or husband.

(b) If the deceased leaves a widow and children or a husband and children, then one-half (1/2) to the widow or husband and the other one-half (1.2) to the children of the deceased.

(c) If the deceased leaves a child or children, but no widow or husband, then the whole to the child or children.

(d) If the deceased leaves no widow, husband or child, then the recovery shall pass to the mother and father of the deceased, one (1) moiety each, if both are living; if the mother is dead and the father is living, the whole thereof shall pass to the father; and if the father is dead and the mother living, the whole thereof shall go to the mother. In the event the deceased was an adopted person, “mother” and “father” shall mean the adoptive parents of the deceased.

(e) If the deceased leaves no widow, husband or child, and if both father and mother are dead, then the whole of the recovery shall become a part of the personal estate of the deceased, and after the payment of his debts the remainder, if any, shall pass to his kindred more remote than those above named, according to the law of descent and distribution. KRS § 411.130

Under Kentucky law, the personal representative of a descendant who is killed by reason of the tortious acts of another, and later dies from such injuries, is entitled to recover in the same action both damages for the wrongful death of the descendant and damages for the personal injuries from which the descendent suffered prior to death, including a recovery for all elements of damages in both a wrongful death action and a personal injury action. KRS § 411.133

Kentucky law precludes the recovery of damages for pain and suffering where the descendant remains unconscious from the time of injury until the time of death. Vitale v. Henchey, 24 S.W.3d 651-659 (Ky. 2000) Damages for pain and suffering may be awarded, however, if the injured person was partly conscious, had intervals of consciousness, or was conscious for a short time before death. In Kentucky, even a brief period of consciousness may suffice to warrant the recovery of damages for pain and suffering. Spalding v. Tape, 2012 WL 3845411 (E.D.Ky. 2012)

In addition to a wrongful death action brought by a personal representative pursuant to KRS § 411.145, a wife or husband may recover damages in a separate cause of action for spousal loss of consortium. Martin v. Ohio County Hosp. Corp., 295 S.W.3d 104, 108-09 (Ky. 2009). Similarly, in a wrongful death action in which the descendent was a minor child, the surviving parent or parents, may recover for loss of affection or companionship that would have been derived from such child during their minority, in addition to all other elements of the damage usually recoverable in a wrongful death action. KRS § 411.135 A minor child may also recover damages for loss of parental consortium arising out of the death of a parent. Pauly v. Chang, 498 S.W.3d 394 (Ky. App. 2015) “Consortium” is expressly defined as “the right to the services, assistance, aid, society, companionship, and conjugal relationship between the husband and wife or wife and husband.” KRS § 411.145(1) This includes permitting both the spouse and minor children to recover for loss of household services of their spouse, mother or father. University Medical Center, Inc. v. Beglin, 2009 WL 102800 (Ky. App. 2009)