In two published opinions released today, the Court of Appeals affirmed that plaintiffs in wrongful death medical malpractice cases can recover what have come to be known as Denney damages – the lost future earning capacity of the decedent. Such damages are recoverable when there is a sufficient evidentiary basis to estimate an accurate amount. These rulings mean medical malpractice defendants and their insurers will continue to face an increase in potential exposure for what many believe amount to speculative damages.

The first case, Zehel v Dr. Nugent, arose in Washtenaw County and involved a baby who died hours after a complicated delivery that left her with severe neurological injuries. The decedent’s family brought a wrongful death action alleging malpractice on the part of the OB/GYNs. The second case,  Daher v Prime Healthcare Services – Garden City, LLC, was filed in Wayne County alleging malpractice in the treatment of a 13-year-old’s case of bacterial meningitis. The teen died and his family filed suit.

In each case, the Court of Appeals held that in a wrongful death action, generally the estate can recover the lost earning capacity of the decedent because such damages would have been recoverable if the decedent were alive. However, the Court of Appeals put a limit on when those damages can be recovered. In the Daher case, the Court of Appeals held that the estate could recover the lost earning capacity of the 13-year-old decedent because “it seems highly likely that the future earning potential of a 13-year-old can be proven with reasonable certainty based on personal characteristics and influences known at the time.” However, in Zehel the Court of Appeals affirmed the denial of such damages because the decedent was only hours old and therefore no reasonable basis was available to accurately estimate such a loss.

FBMJ is continuing to evaluate the impact of these rulings and will continue to assist clients defend against claims for such speculative damages, with thorough discovery and thoughtful, strategic motion practice. Should you have any questions, comments, or concerns, please feel free to reach out to one of the medical malpractice specialists at Foley, Baron, Metzger & Juip, PLLC.  

Note: See our first analysis (July 2020) of the application of these damages in a medical malpractice case.