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Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Lake v. Res-Care Kansas, Inc., No. 98-1019-JTR, 2002 WL 32356436 at * 1 (Kan. 2002).

This case addresses the following issue:

Can I recover punitive damages in a survival action?

This case explored the issue of whether a plaintiff could recover punitive damages in a survival action. Punitive damages are damages that exceed what is necessary to compensate the plaintiff for his or her injury. They are normally given to a plaintiff when a defendant acted in a willful, wanton, or malicious manner. Id. at 5. In exploring this issue, the court concluded that, while a plaintiff could not recover punitive damages in a wrongful death action, a plaintiff could recover punitive damages in a survival action. Id. at 1.

The decedent, a mentally disabled woman, was a resident at GW Skills Center. Id. at 2. She was sent to the hospital on two occasions by the staff at the skills center because of her dehydration and refusal to eat. Id. The decedent died four days after she returned to the skills center from the hospital. Id. Throughout those four days, the decedent showed multiple signs of physical deterioration, and had numerous symptoms of a life-threatening syndrome. Id. However, the staff at the skills center did not contact the decedent’s doctor or nurse and the senior management at the skills center was aware that the decedent was not doing well but made no effort to provide her with additional medical care. Id. The mother of the decedent brought a survival and wrongful death action against the skills center and the court entered judgment against the skills center. Id. at 1. Following the trial, a hearing was held to determine the punitive damages in the case. Id.

According to the court, the express purpose of punitive damage was to punish the wrongdoer and to deter him or her and others from committing similar wrongs in the future. Id. In addition, the court noted that punitive damages were not recoverable in a wrongful death action. Id. However, punitive damages were recoverable in a survival action. Id.

The court noted a Kansas statute that provided seven enumerated factors which the court “may” consider when assessing punitive damages. Id. However, the court noted that these considerations were not mandatory or exclusive. Id. These seven factors included: (1) likelihood at the time of the alleged misconduct that serious harm would arise; (2) degree of the defendant’s awareness of that likelihood; (3) profitability of the defendant’s misconduct; (4) duration of the misconduct and any intentional concealment of it; (5) attitude and conduct of the defendant upon discovery of the misconduct; (6) financial condition of the defendant; and (7) total preventive effect of other damages and punishment imposed upon the defendant as a result of the misconduct. Id. at 1-4. Moreover, the court indicated that the determination of the amount of punitive damages should not be a purely mechanical application of the seven factors. Id. at 1. The court specified that the judge before whom the case was tried should exercise considerable caution in fixing the proper amount to be awarded in order to accomplish the purposes for which punitive damages were authorized under Kansas law. Id.

In this case, the jury found that the physical harm and death of the decedent were due to the repeated failures by the skills center to provide the decedent with proper medical care despite clear signs that she was not well. Id. at 5. Also, the jury found that the skills center acted in a willful, wanton, or malicious manner. Id. Therefore, the court ordered judgment in favor of the plaintiff for punitive damages. Id. at 7.

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