Brad Pistotnik Law
Abogado El Toro

Wrongful Death

Wrongful death actions in Kansas, Nebraska, Texas, Missouri, Florida and Illinois.

Wrongful death from an auto accident, tractor-trailer accident, motorcycle accident, construction site accident or medical malpractice case leaves the entire family in a state of disarray. Generally, wrongful death is a misnomer that the insurance industry and lawyers dreamt up. The truth is, that wrongful death is a claim for injuries and death when someone else’s horrific negligent act caused you to lose your mother, your father, your child and other loved ones. You have multiple claims that are laid out in a statutory scheme, but the sum of it is that you should be repaid for losing the most important person in your life.

These events are life altering and the insurance industry treats it as a cost. The problem with that mindless thought is that no one can set a value on human life and the loss of a loved one. To lose your child is unthinkable. To lose your spouse, the one you love, is just as bad. To lose a parent, you lose the most important person that taught you how to understand love and feelings. No amount of money will ever replenish the loss or make you feel whole. I can quote statutes for each state and what they allow you to receive, but the truth is, it is never right. If you were asked if you would take one million dollars for a loved one you would say no. Ten million dollars makes no difference. One hundred million does not even make a dent. There is no amount of money that will bring your loved one back. You just need piece of mind and restoration of what you lost. You need justice! You need a fair amount of compensation.

In these kinds of accidents, sometimes it is about trying to make you feel whole like a family again. Principle, in and of itself, does not bring back your loved one. So why hire a lawyer in a wrongful death case? Simple! You need to recover for your losses and to try to make it back through life after you lose the most important person in your life. One senseless act by a negligent driver or some idiot driving a truck after being on the road for 100 hours and you lose your loved one. Senseless!

Sometimes, the wrongful death action is to stop the event from occurring again. It is filed to prevent others from doing the same senseless and reckless act. When trucking companies disobey the rules on maximum driving hours, they will continue to violate the law until someone makes them act safely. Perhaps your particular loss may be the straw that broke the camel’s back. You could be the sole person that changes destiny through hiring a lawyer that actually knows how to punish a defendant. You may not want to carry that burden. You may want to just take the easy route and get a small amount of compensation for your loss. You have to decide how much you can bear in suing the person that caused your loss.

Wrongful death claims may include a survival claim for the conscious pain and suffering of an injured person who subsequently dies.

K.S.A. § 60-1801 provides the right to survival actions and states:

In addition to the causes of action which survive at common law, causes of action for mesne profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud, or for death by wrongful act or omission, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same.

Kansas courts have held that whether an injured party has experienced conscious pain and suffering may be established either by a lay witness or by expert testimony. See, e.g., Smith v. Printup, 254 Kan. 315, 357-58, 866 P.2d 985, (1993); Gregory, 246 Kan. at 510; Leiker, 245 Kan. at 342-44. "Under Kansas law, the testimony of lay witnesses is admissible on the issue of consciousness." Folks v. Kansas Power and Light Co., 243 Kan. 57, 69, 755 P.2d 1319 (1988), overruled on other grounds by York v. InTrust Bank, N.A., 265 Kan. 271, 962 P.2d 405 (1998).

In Pape v. Kansas Power & Light Co., 231 Kan. 441, 647 P.2d 320 (1982) the Kansas Supreme Court examined the amount of evidence necessary to submit a conscious pain and suffering claim to the jury and stated, “We have examined the record and concluded that, although not extensive, there was sufficient evidence to justify a finding that Terry Pape suffered conscious pain and suffering from his injuries until his death. When discovered lying at the bottom of the bins, Terry Pape was breathing, had a bloody cut on his head, and was audibly moaning. . . Under the circumstances, we find that there was sufficient evidence to submit to the jury the element of damages of decedent's conscious pain and suffering and to justify an award in the amount of $ 2,000. Id., Pape, 231 Kan. 441, 448, 647 P.2d 320, 325, 1982 Kan. LEXIS 288, *15-16, 33 A.L.R.4th 799.

The Kansas Supreme Court analyzed several prior Kansas Supreme Court Decisions in the case of Leiker v. Gafford, 245 Kan. 325, 778 P.2d 823, (1989) and ruled that where there is inconsistent evidence, the matter must be submitted to the trier of fact. In doing so, the Supreme Court stated,

“In Fudge v. City of Kansas City, 239 Kan. 369, the decedent was injured in a motor vehicle collision and died twenty days later of the injuries he sustained in the accident. His wife and children brought a wrongful death and personal injury survival action against the other driver and the City of Kansas City. The jury award included $ 50,000 for pain, suffering, disabilities, or disfigurement and any accompanying mental anguish. Defendants contended on appeal that the evidence did not support the $50,000 award. They argued that the decedent lost consciousness a few minutes after the collision and never regained consciousness, and that medical records showed he did not respond to stimuli. The defendants presented testimony by a physician that Fudge was in such a deep state of unconsciousness that he could not have felt pain. Ambulance records showed that Fudge had lapsed in and out of consciousness for a ten-minute period after the accident. Fudge's mother-in-law testified that, three days after the accident, he squeezed her fingers twice in response to things she told him about his children, and that he did so two or three more times before he died. This court concluded that the issue was controverted, presenting a fact issue for the jury. 239 Kan. at 380. It is apparent that the plaintiffs in Fudge satisfied their burden of proof without either medical records or expert medical testimony in their favor.Leiker v. Gafford, 245 Kan. 325, 341-344, 778 P.2d 823, 836-837, 1989 Kan. LEXIS 155, *35-41.

The Leiker Court analyzed another significant Kansas Supreme Court Decision on conflicting evidence about conscious pain and suffering and discussed the case of Folks v. Kansas Power & Light Co., 243 Kan. 57, 755 P.2d 1319 (1988) where the Supreme Court discussed the Folks case, the Fudge case and the Pape case, holding that there was conflicting evidence on conscious pain and suffering since lay testimony indicated that Folks was breathing and making incoherent noises (similar to Karen Capps gasping for four to five minutes with a pulse). In doing so the Kansas Supreme Court held,

In Folks v. Kansas Power & Light Co., 243 Kan. 57, the decedent was fatally injured when a metal ladder he was using came into contact with defendant's power line. His surviving spouse and minor children brought a wrongful death and survival action. The jury awarded the estate $ 10,000 for pain and suffering. On appeal, KPL argued there was no competent evidence that Folks was conscious after the accident, and therefore the award for pain and suffering was improper. This court disagreed, citing Pape for its holding that, under Kansas law, lay witness testimony is admissible on the issue of consciousness. The court concluded: "In this case, there is conflicting testimony regarding whether Folks was conscious after the accident had occurred. A police officer testified that when he arrived on the scene Folks was breathing and making incoherent noises, and appeared to be conscious. Folks' employer testified that Folks was never conscious. The jury considered the conflicting testimony, determined that Folks was conscious, and properly awarded damages for pain and suffering." 243 Kan. at 69.”

Leiker v. Gafford, 245 Kan. 325, 344, 778 P.2d 823, 837, 1989 Kan. LEXIS 155, *41-42

In the oft quoted famous case of Smith v. Printup, 254 Kan. 315, 866 P.2d 985 (1993) the Kansas Supreme Court again ruled that lay person testimony that the injured person, prior to death, was breathing erratically and appeared to have body movement presented conflicting testimony that was sufficient to submit to the jury. The Supreme Court found that the trial court did not err in submitting the conscious pain and suffering claim to the trier of fact and stated,

Printup claims the court erred in submitting to the jury Smith's claim of conscious pain and suffering because it was not supported by the evidence. Printup argues that the sole expert witness (the coroner) testified that Smith endured no conscious pain and suffering and that the remaining testimony was inconclusive. Lay witness testimony can support a verdict for pain and suffering. Gregory v. Carey, 246 Kan. 504, 510, 791 P.2d 1329 (1990); Leiker v. Gafford, 245 Kan. 325, 342, 778 P.2d 823 (1989). There was lay witness testimony in this case about Smith's behavior at the scene of the accident supporting a reasonable inference that he endured conscious pain or suffering. Mark Woodhouse testified that Smith was breathing erratically and that he appeared to respond with a two-syllable sound and body movement to Woodhouse's statement that help was on its way. There was conflicting testimony from emergency personnel. One highway patrolman testified that he believed Smith was unconscious. A volunteer firefighter testified that he could not opine whether Smith was conscious immediately after the impact. An EMT testified that what he observed suggested Smith was not conscious. The coroner who examined Smith after he died testified that, given the nature of Smith’s injuries, it was possible, but not medically probable, that Smith was conscious after the impact. Woodhouse, however, was the first person on the scene. None of the more experienced personnel arrived until 10-25 minutes after the crash. Accordingly, the jury could reasonably have inferred that Woodhouse observed things that others did not, and that what he observed indicated Smith endured conscious pain and suffering. There was sufficient evidence in the record to submit to the jury Smith's claim of pain and suffering.

Id., Smith v. Printup, 254 Kan. at 357, 358; 866 P.2d at 1012 (1993)

Thus, in order to establish both a wrongful death claim and a survival claim you will need to be able to prove conscious pain and suffering. In many cases a witness at the scene may be the only evidence you have. EMS workers may provide evidence. Kansas allows evidence of conscious pain and suffering to be allowed when you have either lay or expert testimony and there is conflicting evidence of whether the decedent was slightly conscious and had pain and suffering. We sometimes use medical experts to establish the basis for the evidence. Where you have death caused by fire or explosion you will need the autopsy and coroner’s report to look for evidence of conscious pain and suffering. We can measure the remaining blood to study the carbon monoxide levels in the blood and use other tests to show that the person must have felt pain before death. If you have a wrongful death or survival claim for a loved one then call Brad Pistotnik Law at 800-241-BRAD or call Brad Pistotnik on his cell at 316-706-5020.

Honestly, it is easier to settle and move on with your life. If you ask my advice, I will tell you that principle is not worth fighting unless you are really mad and want to make a point and change the world around us to be a better place. If you are that person, Brad Pistotnik Law is the law firm for you.

When you are fighting mad, you need an attorney that knows how to fight the really big industry defendants. I have sued major trucking companies, nursing home chains, insurance carriers, hospitals and many large name farming and agricultural defendants that I cannot name due to confidentiality orders. These big cases almost always result in an order of confidentiality prohibiting the plaintiff and the lawyer for the plaintiff from telling any big names of the defendants. These defendants will spend hundreds of thousands of dollars to fight your claim. One insurance company I sued spent $2.4 million dollars to defend a $25,000.00 policy. It is nonsensical. To them, it is just fighting one more lawyer and their client. To you, on the other hand, you have spent your whole life to be with the person you love. You have a major loss. It is different.

To fight the bigger companies, you have to have a lawyer with enough money to fight. A big case can easily cost one to two hundred thousand dollars to fight. This does not take into consideration attorney fees. Your lawyer has to have enough money to pay for the costs to fight, because you don’t have that money. You cannot fight if you have a lawyer who does not have enough funds to take on the industry giants. At Brad Pistotnik Law, if we take on your case and believe in your fight, you can believe we will spend the money it takes to fight the fight. It is similar to David versus Goliath. You just have to keep the right mind and spirit and find a lawyer who will believe in you and your fight.

These battles take time and the lawyer puts their life into fighting for you. You form a relationship with the lawyer that becomes close like family. The lawyer you choose has to care as much as you do or it is a waste of time. Some of my clients on the bigger wrongful death cases call me daily and email me all the time. You have to form a bond with the lawyer and vice versa. This is a big decision for you and you need to trust the lawyer you hire to work as hard as possible. You need to hire a lawyer with enough money to hire every type of legal expert necessary to win your case.

You only get one chance. Once you hire a lawyer and start to build the case, the manner in which it is built will result in the final outcome. If you hire a lawyer who will not spend money to build your case, the value drops. This is not the time to be frugal. Case development at the start requires spending money on experts, depositions, life care experts and economic loss experts. Only a true trial attorney with sufficient funds and resources will be able to get you the result you want. Someone has to fight your fight.

We know you do not have the money to spend on the case, so we spend our money and risk our time to help you build your case. A really big wrongful death case can take the lawyer from a few hundred hours to several years of time to complete the case. When you hire the lawyer, look at the lawyer and figure out whether he or she will be your friend, counselor and lawyer to help you complete your task.

Anyone can write a settlement offer. A trial lawyer that files suit, takes depositions, hires experts and builds your case must have developed the experience of the old school art of trial lawyering. This is not something that is taught in law school. It only comes from mentoring and experience. Many of the best lawyers are past 50 years of age when they have enough experience to really know how to build a case. This is not to say that young lawyers cannot do the job. Some can. It really boils down to the simple thought that older is wiser and experience counts. Usually, a lawyer that practices trial law is considered a neophyte until they get past the age of 40. After handling hundreds of hearings, trials, bench trials and other legal matters with hundreds or thousands of clients, the attorney begins to get more and more experience. Wisdom comes with age and experience.

When you hire your lawyer to be a warrior for you, choose wisely. Law school lets you get a degree. It does not mean that you are a good trial lawyer. Anyone can hang a shingle out and say that they practice law, but do they really know how to litigate. You need a truly compassionate lawyer that cares about your case when you have a wrongful death claim that understands the art of litigation and trial practice. There are only a few percent of the total U.S. lawyers that are trained and mentored in this old art of trial litigation.

Talk to your prospective lawyer and ask them if they ever went to trial for a week or more. Ask them if they have been in nine week long trials. Ask them how long they take in depositions. Ask them if they can afford to spend the money it takes to win your case. Then, you decide for yourself. Never hire a cheap lawyer. Always look for the lawyer that is willing to spend one hundred thousand dollars or more of their own money to help you and your family, regardless of whether they are ever repaid.

When you see a twinkle in their eye and know they can afford to represent you regardless of how much it costs, then you have found a lawyer worthy of battle. Brad Pistotnik Law will spend whatever it takes to win for you and your family on your wrongful death, win or lose. You do not have to pay them back if they are unsuccessful. They risk their own money and time.

Brad Pistotnik Law, P.A. and their team of lawyers work all over Kansas and the U.S. and work on a contingency. You only pay if you win a monetary recovery. We can only be found at 10111 E. 21st Street North, Suite 204, Wichita, Kansas 67206. Our phone numbers are 316-684-4400 for the main office. The toll free number is 800-241-BRAD. Brad’s cell phone is 316-706-5020. We are not on East Central. We are on east 21st Street North. The other firm is not connected to us. You can call Brad 24 hours a day, on the weekends, on a holiday and any time you need. He will get back with you as soon as possible. Hire the real Brad and get a lawyer that cares.

Bradley A. Pistotnik © 2015