Consumer attorneys plan new push to make survival action damages permanent

Consumer attorneys plan to make another push to make permanent a law that allows personal injury plaintiffs to recover damages for pain, suffering, or disfigurement after a person's death.

The original bill, SB 447 passed in 2021, is set to sunset on Jan. 1, 2026. SB 29, an effort to make the change permanent, died in committee earlier this year.

Jacqueline Serna, deputy legislative director of the Consumer Attorneys of California, told attendees at the trial lawyers' annual meeting this weekend that the organization plans to reintroduce the measure in June 2026.

"It's going to remain our top priority," Serna said.

Gov. Gavin Newsom signed into law on Oct. 1, 2021. The bill expanded the scope of recoverable damages in survival actions, permitting damages for a decedent's pain, suffering, or disfigurement to be recovered in an action brought by the decedent's personal representative or successor in interest.

Under the prior version of Code of Civil Procedure section 377.34, an action brought on behalf of someone who sustained a bodily injury could recover pain-and-suffering damages, but an action brought by a decedent's survivors could not.  

"The law also requires plaintiffs who recover these damages to report the outcome to the Judicial Council, and it leaves untouched the caps on noneconomic damages in medical malpractice cases and claims under the Elder Abuse Act," Serna said.

Serna highlighted the results of four years of data collection under the amended Code of Civil Procedure §377.34, noting that only four cases fully utilized the expanded damages.

"The data showed four cases that utilized these damages and went all the way to jury or a final verdict that had to be approved by a court," she said.

According to Serna, one case involved elder abuse, and two of the others were relatively minor, including a routine accident case against a public entity. She added that despite the limited data, efforts to make the law permanent faced strong opposition from the medical community--which has repeatedly warned that removing the time limit could lead to "nuclear verdicts."

"What is this disproportionate reaction?" Serna asked. "Well, the reality is, it was the insurance industry," she said. "They exist to uphold MICRA."

MICRA--the Medical Injury Compensation Reform Act--currently caps non-economic damages in California medical malpractice cases at $350,000 for non-death cases and $500,000 for wrongful death, with annual adjustments for inflation. It also sets limits on attorney fees and updates rules for future economic damages, aiming to balance patient compensation with keeping healthcare accessible.

"Since MICRA has been resolved, this is their new thing that they wanted to fight against," Serna said.

Serna said that adding to the opposition to SB 29 were concerns about potential municipal bankruptcies following the $2 billion Los Angeles County settlement related to sexual abuse claims, highlighting the tension between compensating victims and managing strained public budgets.

"When coffers are low, then obviously they look at things like high settlements, right?" Serna said. "Those things become big issues, and that's just kind of the reality of what we were facing this year."

As a result, SB 29 got held up in the appropriations committee until the last two days of the session, leaving advocates of the bill scrambling to reach legislators.

"Everybody was surprised, including us," Serna said. "And so, we decided to not bring the bill up for a vote because we couldn't guarantee that we wouldn't fail."