Q: Our mom fell and broke her hip as a result of neglect at a facility. She is 82 and in failing health. The doctor has told us she may well die in the next six months. So our first question is, how do we deal with this when the trial in her case is not for a year?
C.N., Pomona
Ron Sokol
A: One option is to preserve your mother’s testimony by taking her deposition, under oath; assuming that can be done — that is, that she is competent to testify. Another option (either as a companion effort, or in and of itself) is to make a motion for a preferential trial setting. If the motion for preferential setting is granted, the trial could be within 120 days.
Specifically, California Code of Civil Procedure 36(a) sets forth:
“A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings:
(1) The party has a substantial interest in the action as a whole.
(2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.”
For a preferential trial setting motion to be granted, it will be essential that the court has a very clear report, letter or preferably sworn statement by the doctor familiar with your mom and her condition that sets forth she will be unable to assist in her case and unable to testify within a very limited period of time, and/or that she is going to die in the near future.
Q: The second question is, if she does in fact die before trial, how does that impact what can be recovered?
C.N., Pomona
A: Here, as with the topic above, my expectation is your mom has an attorney who is providing helpful guidance.
If your mother does die, a representative (such as from the family) could continue the case if: (a) your mom’s death can be tied to the incident that resulted in the case being brought in the first instance, thus a wrongful death action now arises, or (b) if the claim survives.
A survival action is a claim filed by the estate of the decedent that seeks to recover damages the deceased would have been able to claim if still alive, thus permitting the estate to pursue compensation for losses and/or injuries suffered before the individual’s passing. These can include lost wages, medical expenses and, in some instances, pain and suffering. Note, however, that a survival action is permissible only if the deceased survived for a period of time after the accident that led to her death.
Ron Sokol has been a practicing attorney for over 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.
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