SURVIVAL ACTIONS AFTER THE 2021 AMENDMENT TO CODE OF CIVIL PROCEDURE SECTION 377.34:

LEVERAGING DIVERSE FORMS OF EVIDENCE TO PROVE CONSCIOUS PREDEATH PAIN AND SUFFERING

Writen by Paul Traina^*, John Shaller^* & Trevor Weitzenberg^*

When negligence or misconduct causes the death of a loved one, survivors may bring tort claims for damages under two distinct theories. First, a wrongful death action is an independent claim on behalf of the decedent’s heirs for damages they personally suffered on account of the death. (Code Civ. Proc., § 377.60 et seq.) Second, a survival action is for injuries the decedent suffered before death; this cause of action, asserted by the decedent’s personal representative or successor in interest, "survives" to the decedent’s estate for the purpose of recovering damages that the decedent could have been awarded had he or she lived. (§§ 377.20, 377.30; Adams v. Superior Court (Centinella Freeman Regional Med. Ctr.) (2011) 196 Cal. App.4th 71, 78-79.) Our focus in this article is survival actions — specifically, actions for damages based on pain and suffering a decedent experienced before death.

Until recently, California was one of only five states that did not usually permit recovery for the decedent’s general damages (pain, suffering, disfigurement) in survival actions. (Code Civ. Proc., § 377.34; see Welf. & Inst. Code, § 15657 [governing actions for elder and dependent adult abuse].) In 2021, however, Governor Newsom approved Senate Bill 447 and amended California law to allow these damages. (Code Civ. Proc., § 377.34, subd. (b).) The newly amended statute raises several questions. When does a survival action serve clients’ best interests under the new law? What must a plaintiff show to recover damages for a decedent’s pain and suffering? And on what evidence or facts?