A husband and wife brought a medical malpractice action against several medical providers stemming from a misdiagnosed or untreated spinal injury. was Among other claims, the wife asserted a familial loss-of-consortium claim and a claim for economic damages. The husband then died for unrelated reasons. The medical providers moved to dismiss, focusing on the consortium claims. The superior court granted the providers’ motion, explaining that the loss-of-consortium and economic damages claims were derivative of the husband’s non-economic tort action and thus could not survive his death. The wife appealed.
Under Arizona common law, a personal representative or estate may not maintain an injured party’s non-economic tort claims after the injured party’s death but may pursue a cause of action for economic harm, such as medical expenses. In addition, Arizona’s Survival Statute allows a representative or estate to commence or maintain some of a decedent’s specific causes of action post-mortem. A.R.S. § 14-3110 (excluding decedent’s claims for certain torts and damages for pain and suffering).
The parties agreed that under this scheme, the decedent’s non-economic tort claims were no longer viable, and the Survival Statute did not preserve the familial loss-of-consortium claim because the claimant was the widow, not the decedent. Thus, the issue was whether a derivative familial loss-of-consortium claim survived the injured party’s death when the death was unrelated to the tortious act and when decedent’s non-economic claims are no longer viable.
The Court of Appeals held that the death of an injured party does not extinguish a surviving family member’s loss-of-consortium claim if the claimant can establish that the underlying tortious action that caused the injury resulted in the loss of consortium. The court questioned the rationality of allowing a family member to recover for loss of consortium, but not allowing the same action “for the same harm, to the same relationship, for the same time period” after the injured party dies. Therefore, the appellate court ruled that the trial court erred in dismissing the widow’s loss of consortium claim.
Judge McMurdie authored the opinion; Judges Thumma and Perkins joined.
Posted by: Payslie Bowman