How Does The Law On Wrongful Death Work In Kansas?
The law varies by state and even neighboring states can have vastly different laws when it comes to wrongful death claims. The advantages and disadvantages of where a case is filed can be numerous and have a dramatic effect on the outcome for the victims.
Kansas’ wrongful death statute can be found at K.S.A. 60-1901. In Kansas, wrongful death is understood as not a separate cause of action. Instead, it is the claim that the person who died could have brought for damage to them had they lived. The necessary elements are: 1) death of a person and 2) caused by “wrongful act or omission of another.” The following discusses some of the details of bringing a claim under this statute.
Who Can Bring The Suit?
Any heir who has sustained a loss by reason of the death may bring the wrongful death suit. For these purposes, the meaning of “heir” is the same as it would be under property and estate law: one who would receive property or the estate from a person at their death because of their relationship. This can include the surviving spouse, parents, grandparents, children, and other relatives who would be the decedent’s heir at his death. However, this does not include the administrator of the decedent’s estate. Therefore, if a parent’s parental rights have been severed for some reason, this also ends the right of her former children to bring a wrongful death action upon her death.
The “loss” requirement is usually not an issue. However, where children had no “meaningful relationship” with their estranged birth mother’s child and there was little to no evidence of relationship or grief, the court suggested that this might not be sufficient to fulfill the “loss” requirement.
Who Can They Sue For?
Under the law, a person for whom you can bring suit includes an unborn child. Although Kansas cases have held that an “unborn child” must be viable outside the womb in order to bring a wrongful death action upon their death, Kansas statute does not require that the fetus be viable outside the womb. It includes a fetus in any stage- from fertilization to birth. However, if the death of the unborn child was as a result of the mother’s actions or any form of legal abortion, there is no wrongful death action available upon the death of the fetus.
What Damages Are Available In A Kansas Wrongful Death Claim?
Non-economic damages in a wrongful death case are capped at $250,000. The verdict in a wrongful death action is itemized by the trier of fact to reflect amounts awarded for:
(1) non-pecuniary damages;
(2) expenses for the care of the deceased caused by the injury;
(3) other pecuniary damages, such as lost income.
The elements of damage for which recovery may be awarded include:
(1) mental anguish, suffering or bereavement;
(2) loss of society, companionship, comfort, or protection;
(3) loss of marital care, attention, advice or counsel;
(4) loss of filial care or attention;
(5) loss of parental care, training, guidance, or education; and
(6) reasonable funeral expenses.
As a strategic matter, in some wrongful death cases plaintiffs and counsel choose to not submit the issue of non-economic damages to the jury, instead submitting only categories of economic damages to avoid the cap of $250,000 on non-economic damages.
Punitive damages are not recoverable in wrongful death actions. Punitive damages are recoverable, however, as part of a survival action. Along with the wrongful death cause of action, the estate of a decedent can bring a survival action for decedent’s claimed damages for both economic and non-economic, arising out of defendant’s negligence. It is this survival action that serves as the vehicle for a punitive damages claim.
What Limitations Are There On Kansas Wrongful Death Claims?
The statute of limitations for wrongful death actions is two years from the date of death. Although this time may be shortened, it will not be extended. Because the wrongful death action is based on the rights of the decedent, if the statute of limitations has run out on the decedent’s original cause of action, an heir cannot bring a wrongful death claim after their death. For example, where a man had a personal injury action against a company, did not bring it, and subsequently died as the result of the personal injury; his wife could not bring a wrongful death claim because the statute of limitations on his personal injury claim had run out by the time she filed the wrongful death claim.
In medical malpractice, a patient’s survival for more than four years after the alleged malpractice destroys any wrongful death claim heirs might have on the patient’s death. This is even though the patient’s death is highly likely to have been caused by malpractice.
Finally, only one action can be brought against any one defendant for the death of a particular person. Any heir who is not a part of the original action can join the action (in legal terms, “intervene”).
 Any counsel handling a wrongful death case in Kansas would be well-served to review closely the case of Wentling v. Medical Anesthesia Services, available at this link; see also Huffman v. Thomas, 26 Kan.App.2d 685, available at this link.
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