Categories
California Probate News

Pending California Bill, SB 29, Would Revive Option to Claim Pain and Suffering Damages Via Survival Actions

California SB 29: Proposed Law Would Restore Pain and Suffering Damages in Survival Actions

If you’ve lost a loved one due to someone else’s negligence in California, you know the profound emotional and financial toll it takes. Under current California law, your family may be barred from recovering damages for the pain and suffering your loved one endured before death—even if that suffering was severe and prolonged. A pending bill, Senate Bill 29 (SB 29), aims to change that by restoring the right to claim pain and suffering damages through survival actions. This article explains what SB 29 proposes, who it affects, and what California families should know. (For background on the bill, see the original article from CEB.)

California Probate and Trust, PC serves California residents navigating probate, trust administration, and estate planning. We help executors, trustees, beneficiaries, and families understand their legal rights and options—including when a wrongful death or survival action may be part of settling an estate.

Key Takeaways

  • What SB 29 does: The bill would allow recovery of pain and suffering damages in survival actions, reversing a 2022 California Supreme Court decision that eliminated this right.
  • Who it affects: Families and estates of decedents who suffered before death due to negligence, medical malpractice, elder abuse, or other wrongful acts.
  • Current law: Right now, only economic damages (medical bills, lost earnings) can be recovered in a survival action; pain and suffering damages are only available in wrongful death claims, which have strict limits on who can sue.
  • Why it matters: SB 29 would restore compensation for the decedent’s own suffering, not just the family’s loss, and would apply retroactively to cases still pending.
  • Next steps: The bill is pending in the California Legislature. If you have a potential claim, consult an attorney to preserve your rights and understand how the law may apply to your case.
  • Who This Article Is For

    This guide is written for:

  • California residents who have lost a family member due to negligence, malpractice, or elder abuse
  • Executors and personal representatives managing estates with potential wrongful death or survival claims
  • Attorneys and legal professionals advising clients on California estate litigation and personal injury law
  • Anyone seeking to understand the difference between wrongful death and survival actions in California
  • If you’re dealing with the aftermath of a loved one’s death and wondering whether you can recover compensation for their suffering, this article will help you understand the current law, what SB 29 proposes, and when to seek legal help.

    What Is a Survival Action in California?

    A survival action is a lawsuit brought on behalf of a deceased person’s estate to recover damages the decedent could have claimed if they had lived. It “survives” the person’s death and is prosecuted by the executor or personal representative of the estate.

    Survival actions can arise from:

  • Negligence (car accidents, slip and fall, etc.)
  • Medical malpractice
  • Elder abuse or neglect in a nursing home
  • Product liability
  • Any other personal injury claim the decedent had before death
  • Historically, survival actions in California allowed recovery for both economic damages (medical expenses, lost wages) and non-economic damages (pain and suffering, emotional distress). However, a 2022 California Supreme Court decision dramatically narrowed what can be recovered.

    The 2022 Supreme Court Decision: Quiroz v. Seventh Ave. Center

    In Quiroz v. Seventh Ave. Center (2022), the California Supreme Court ruled that survival actions cannot include damages for pain and suffering suffered by the decedent before death. The Court held that only economic losses—such as medical bills and lost earnings—could be recovered through a survival action.

    The practical effect was devastating for many families. Even if a loved one suffered for days, weeks, or months before dying from injuries caused by someone else’s wrongdoing, the estate could not recover damages for that suffering in a survival action. Pain and suffering damages were limited to wrongful death claims, which have strict rules about who can bring them and what can be recovered.

    The Problem This Created

    Under Quiroz, many deserving families were left without a remedy. For example:

  • An elderly parent who suffered severe bedsores and pain in a neglectful nursing home, then died, could not have those damages recovered by the estate.
  • A person injured in a car accident who experienced significant pain before dying days later could not have that suffering compensated through the estate.
  • Families of decedents with no statutory wrongful death beneficiaries (such as unmarried adults with no children) had no way to recover non-economic damages at all.
  • This gap in the law meant that wrongdoers faced reduced accountability, and families were denied justice for their loved one’s suffering.

    What Senate Bill 29 Would Do

    SB 29, introduced in the California Legislature, would overturn the Quiroz decision by restoring the right to recover pain and suffering damages in survival actions.

    Specifically, the bill would:

  • Allow non-economic damages in survival actions: Estates could again recover damages for the decedent’s pain, suffering, and emotional distress before death.
  • Clarify the law: The bill would amend California Code of Civil Procedure Section 377.34 to explicitly permit recovery of these damages.
  • Apply retroactively: SB 29 is intended to apply to cases pending as of the effective date, meaning families with open claims could benefit even if the injury or death occurred before the law changes.
  • Why This Matters

    Restoring pain and suffering damages in survival actions would:

  • Provide fuller compensation for the harm caused by negligence, malpractice, or abuse
  • Hold wrongdoers accountable for the totality of the suffering they caused
  • Ensure that decedents’ rights are vindicated, not just the rights of surviving family members
  • Fill the gap for families who cannot bring wrongful death claims due to lack of statutory standing
  • Survival Actions vs. Wrongful Death Claims: What’s the Difference?

    It’s important to understand how survival actions and wrongful death claims differ, because both may be filed after a loved one’s death—and both can be affected by SB 29.

    Survival Action

  • Who can sue: The personal representative or executor of the decedent’s estate
  • What it recovers: Damages the decedent could have claimed if alive (medical bills, lost wages, and—if SB 29 passes—pain and suffering before death)
  • Who benefits: The estate (and ultimately the heirs or beneficiaries under the will or intestacy law)
  • Wrongful Death Claim

  • Who can sue: Only certain statutory beneficiaries (spouse, children, or if none, other heirs who would inherit under intestacy law)
  • What it recovers: Damages for the family’s loss—such as loss of companionship, support, and guidance—plus funeral and burial expenses
  • Who benefits: The individual family members who bring the claim, not the estate
  • In many cases, both a survival action and a wrongful death claim can be filed. They address different harms: the decedent’s own suffering (survival) and the family’s loss (wrongful death). SB 29 would restore balance by ensuring the decedent’s suffering is also compensable.

    Real-World Scenarios: How SB 29 Could Help California Families

    Example 1: Nursing Home Neglect

    Maria’s 82-year-old father was a resident of a skilled nursing facility in Los Angeles. He developed severe bedsores due to neglect, suffered infections, and endured significant pain for several weeks before dying. Under current law, Maria, as executor of his estate, can recover his medical bills and perhaps some economic damages—but not the pain and suffering he experienced. If SB 29 passes, the estate could recover damages for his suffering, holding the facility accountable for the full extent of the harm.

    Example 2: Car Accident with Delayed Death

    James was seriously injured in a car accident caused by a drunk driver. He survived for five days in the hospital, conscious and in severe pain, before succumbing to his injuries. James was unmarried with no children. Under Quiroz, his estate cannot recover pain and suffering damages, and no wrongful death beneficiary exists to bring a claim. SB 29 would allow his estate to recover for those five days of suffering, ensuring the drunk driver is held fully responsible.

    Example 3: Medical Malpractice

    A San Diego woman underwent surgery and experienced complications due to a surgeon’s error. She suffered for two weeks before dying from sepsis. Her spouse can file a wrongful death claim for loss of companionship, but the estate currently cannot recover for her pain during those two weeks. SB 29 would change that, allowing the estate to seek compensation for her suffering.

    How SB 29 Would Apply: Retroactivity and Pending Cases

    One of the most important features of SB 29 is its retroactive application. The bill is designed to apply to cases that are still pending in court, even if the injury or death occurred before the law takes effect.

    This means:

  • If you have already filed a survival action and it is still open, you may be able to amend your complaint to include pain and suffering damages once SB 29 passes.
  • If you have not yet filed but are within the statute of limitations, you should consult an attorney now to preserve your rights and be ready to take advantage of the new law.
  • If your case was dismissed or settled based on Quiroz, the retroactive application may not help you—another reason to act quickly if you have a potential claim.
  • What You Should Do Now

    If You Have a Potential Claim

  • Consult a California attorney experienced in wrongful death and survival actions. Time limits (statutes of limitations) apply, and you don’t want to miss your window.
  • Gather records: Medical records, accident reports, and documentation of your loved one’s suffering will be critical to proving damages.
  • Understand your options: You may be able to file both a survival action and a wrongful death claim, depending on your relationship to the decedent and the facts of the case.
  • If You Are an Executor or Personal Representative

  • Review the estate’s potential claims. If the decedent was injured or suffered before death, a survival action may be an asset of the estate.
  • Work with legal counsel. Survival actions are complex and require careful pleading and proof. An experienced attorney can help you navigate the process and maximize recovery for the estate and beneficiaries.
  • Stay informed about SB 29. If the bill passes, it could significantly increase the value of pending or potential claims.
  • If You Are a Beneficiary or Heir

  • Communicate with the executor. Make sure they are aware of any potential survival or wrongful death claims.
  • Know your rights. If you are a statutory wrongful death beneficiary (spouse, child, or heir), you may have the right to bring your own claim in addition to any survival action the estate pursues.
  • Common Mistakes to Avoid

  • Waiting too long to file: California has strict statutes of limitations for personal injury and wrongful death claims—typically two years from the date of injury or death, though some exceptions apply. Don’t assume you have unlimited time.
  • Confusing wrongful death and survival actions: They are separate claims with different beneficiaries and different types of damages. Make sure you understand which applies to your situation.
  • Settling too early: If SB 29 passes, the value of your claim could increase. Consult an attorney before accepting any settlement offer.
  • Failing to preserve evidence: Medical records, photos, witness statements, and other evidence can be lost or destroyed over time. Act quickly to gather and preserve evidence.
  • Why Work with California Probate and Trust, PC?

    At California Probate and Trust, PC, we understand that losing a loved one is one of the most difficult experiences you’ll ever face—especially when that loss was caused by someone else’s negligence or wrongdoing. We serve California families by providing:

  • Deep experience in probate and estate litigation: We regularly handle survival actions, wrongful death claims, and other estate-related disputes.
  • A comprehensive approach: We can help you with probate administration, trust issues, and estate claims all in one place, reducing stress and simplifying the process.
  • Personalized guidance: Every case is different. We take the time to understand your family’s situation and develop a strategy tailored to your needs.
  • Commitment to transparency and communication: We keep you informed every step of the way and explain your options in plain language.
  • If you’re wondering whether you have a survival action or wrongful death claim, or if you’re managing an estate with potential litigation, we can help you understand your rights and next steps.

    Frequently Asked Questions (FAQs)

    What is the difference between a survival action and a wrongful death claim in California?

    A survival action is brought by the decedent’s estate to recover damages the decedent could have claimed if alive (such as medical bills, lost wages, and pain and suffering). A wrongful death claim is brought by certain family members to recover damages for their own loss (such as loss of companionship and support). Both can be filed in the same case, but they serve different purposes and benefit different parties.

    Can I recover pain and suffering damages in a survival action under current California law?

    No. Under the 2022 Quiroz decision, pain and suffering damages are not recoverable in survival actions—only economic damages like medical expenses and lost earnings. However, if SB 29 passes, pain and suffering damages would be restored.

    Who can file a survival action in California?