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Wrongful Death Claim Not Available to Decedent’s Estate

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Doctors decided they needed to implant a pacemaker in Yaeko Otani, age 81. Had the surgery been successful, she would have had a life expectancy of another eight years. Tragically, surgeon David Broudy accidentally punctured her aorta during the surgery, and she died without ever regaining consciousness.

Ms. Otani’s two children and her estate filed suit against Dr. Broudy for wrongful death. After hearing the evidence Judge Sharon Armstrong entered a verdict in favor of the two children for $125,000 each, and in favor of the estate for another $450,000 for “loss of enjoyment of life.” In addition, Dr. Broudy was ordered to pay over $45,000 in medical and funeral costs.

Although he did not challenge the amounts awarded to Ms. Otani’s children, or the medical and funeral expenses, Dr. Broudy did appeal the $450,000 judgment in favor of the estate. His attorneys argued that a “wrongful death” action can not be brought on behalf of an estate.

Under the “common law” principles inherited by U.S. states from their legal predecessors, the claim of damages for wrongful death did not exist. Personal injury claims usually lapsed with the death of the injured party, and by definition the primary victim of a wrongful death could not survive the injury—so the claim was viewed as dying with the victim.

To remedy what was seen as an injustice, state legislatures individually adopted laws that allow survivors to bring a lawsuit for wrongful death of a parent, child or spouse. Most states permit the action to be brought by the estate of the victim, but make clear that the claim belongs to the survivors. Philosophically, the wrongful death action seeks compensation not for the loss of one’s life but for the loss of companionship, support and assistance of a loved one.

That, argued Dr. Broudy, was why Ms. Otani’s estate should not be entitled to receive any money for the loss of her life. While her children could bring their own claims, and the estate could seek reimbursement of medical and funeral expenses, Ms. Otani’s estate had no cause of action, argued Dr. Broudy.

The Washington State Court of Appeals agreed. Since Ms. Otani died without ever regaining consciousness, and because there was no evidence that she suffered any pain as a result of Dr. Broudy’s negligence, her estate was not entitled to any additional damages. A state law which allowed some legal actions to survive the victim’s death did not create any new cause of action, ruled the judges. Estate of Otani v. Broudy, December 16, 2002.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.