What if Plaintiff Dies After Judgement?

Special provisions are made for the death of the plaintiff after judgment.

First, if there has been entered a periodic judgment of a term of years, the payments continue despite the death of the plaintiff.

If, on the other hand the judgment is for the remainder of the plaintiff’s life, the payments are to continue as long as he continues to live. But if he dies before the end of his actuarially determined life expectancy, then the payments continue for that number of years.

Should a plaintiff die while entitled to additional payments under the judgment, those payments appear not to be part of his estate nor subject to testamentary disposition, but pass, in equitable shares, to his "qualifying survivors."

The act defines a qualifying survivor as one who would have had standing as a beneficiary has the plaintiff died, rather than been injured, in the occurrence which gave rise to the judgment.

There is a variation on this concept if the judgment arose from a wrongful death action originally and, thereafter , one or more, but not all, of the beneficiaries die. In such a case, unpaid periodic installments pass proportionately to the remaining beneficiaries. These payments do not, however, enlarge the time a surviving beneficiary will receive payments, but rather will only increase the payment for that time originally found to be the duration of that beneficiary’s damages. For example, if, by periodic judgment, A is to receive $1,000 monthly for 20 years, B is to receive $1,000 monthly for 15 years and C the same amount for 10 years, should A die five years after the judgment was entered , B would receive $1,500 per month for his remaining 10 years of payment and C, $1,500 monthly for his remaining five.

Wrongful death cases have another distinctive feature; all calculations for determining the amount of the judgment must be done for all beneficiaries jointly, although they may ultimately receive individual awards based on separate findings.

In addition to the summary taxation of litigation expenses and attorney fees for a false certificate of merit and securing a less favorable liability result than the panel determination, there is another de facto provision for fees and costs provided in this enactment. Section 2-114 codifies a right of action for malicious prosecution arising from a medical malpractice claim, but dispenses with the requirement that plaintiff plead and prove special damages.

The same section and Section 2-1115 prohibit punitive damages for such malicious prosecution. Yet another basis for imposition of liability is the addition to Sec. 2-611. Following the precedent set by the federal courts, not only a party, but a party’s attorney, or both, may be liable for untrue allegations or denials made without reasonable cause. Importantly, this relief is available against either side of the litigation- not merely against plaintiff and his counsel as some have contemplated.

Conclusion

As can be readily seen, this sweeping reform of malpractice litigation is not readily understandable and is mechanically difficult to use. The bill is remarkable in many respects but non so much as in its ambiguity.

While some people will claim to have little trouble learning how to work with this bill, I think it can be safely said that most will have to spend a great deal of time reading and analyzing the details of the legislation. During the time that I spent writing this article I had the opportunity to talk to many lawyers practicing on both sides of malpractice litigation. The amount of disagreement about the meaning of certain sections was remarkable.

Because of this, despite lengthy study and consideration, consultation with many members on both sides of the bar, and with an eye toward impartiality and fairness, there will be some who do not entirely agree with the analysis presented in this article. But I hope that, by reading it, all will have gained a greater understanding and sense of the act, whatever their point of view.

The act, for all its problems is not without its positive points. It will, for example, certainly reduce the number of frivolous lawsuits. To the extent that goal is served, everyone in malpractice litigation will benefit. Certainly there are other portions of the bill that should be similarly well-received by the bar.

I would like to end my comments about this material with an observation that some might see as biased but I suggest to you is very objective. Many have told me that they think this legislation does not actually change the financial awards to be received by the innocent victims of malpractice. If someone win $1,000,000 in the Illinois State Lottery most of us know that the state satisfies that obligation by purchasing an annuity causing payment to the recipient over a 20 year period of time.

The present cash value of the $1,000,000 annuity is obviously far less than the $1,000,000. In a medical malpractice case, barring the immediate payment of seven-figure past damages , most of the big verdicts will be paid periodically because of high findings of future economic loss. I have been told by defense lawyers that they don’t expect the net dollars spent by malpractice carriers to be substantially lowered by this legislation . I am not capable of understanding that because virtually all of the future damages, both economic and non-economic, will be structured after the first $250,000 included in the present award. It will be interesting to see the developing advocacy of the plaintiffs’ bar because both the client and the attorneys stand to gain by larger past-damage findings.

Regardless of what side of the issue the reader places himself or herself- indeed even if you have no selected a side, I hope that this material has supplied you with a better understanding of the legislation so that you and your clients will benefit from it.