‘We watched her suffer and begged for answers, but none came’ – San Diego Union-Tribune
By the time a doctor pulled a blue half-inch plastic medicine cap from her right lung, Pamela Gray, 76, had struggled to breathe for a month, insisting to family members and medical providers that something was wrong.
But plastic is a poor reflector of X-rays, which allowed the deadly disc to evade detection and subjecting the mother, grandmother and beloved family matriarch to prolonged anguish that culminated in her death on Dec. 13, 2023.
Erica Cole, Gray’s daughter, said the timing was particularly tragic as it caused her to miss what would surely have been one of the most significant events of her life, the birth of her third grandchild.
“My mom didn’t get to meet him,” Cole said. “He was just born, and she never got out of the hospital when he came home.”
While nothing can ever restore that missed opportunity, California law does allow Gray’s loved ones to be compensated for her pain and suffering. But that right could expire on Jan. 1, 2026, depending on the outcome of a highly nuanced debate now underway in the state Senate.
Senate Bill 29, for which Cole testified in Sacramento this week, seeks to extend the right to sue for pain and suffering damages on behalf of a deceased loved one beyond its scheduled expiration at the end of the year.
In 1961, the benefit was removed from state law “at the request of the insurance companies,” according to a written analysis of SB 29, and posthumous claims for pain and suffering were disallowed. In 2021, Senate Bill 447 temporarily restored the right, in recognition that the COVID-19 pandemic had significantly slowed down state courts, making it more likely that a person might have died before their case was settled.
However, SB 447 was a limited-time offer, allowing claims only from Jan. 1, 2022, to Jan. 1, 2026.
Those who oppose SB 29, which would make posthumous claims for pain and suffering permanent, say it was always expected that right would go away once court backlogs caused by the pandemic cleared. State Sen. John Laird, D-Santa Cruz, who sponsored both SB 447 and SB 29, says that’s not so.
“As the legislator who authored the original bill and presented it in every hearing in both houses that year, there was never such an understanding, and it was never stated in a hearing by me or a supporter of the bill that that was the case,” Laird said in testimony before the Senate Judicial Committee this week.
Extending the rights of relatives and other “successors in interest” to claim pain and suffering damages on behalf of deceased loved ones has drawn significant support and opposition from competing factions, all with direct interests in the outcome.
Attorney associations, labor unions and consumer protection organizations have lined up to support SB 29, while a long list of health care and physician groups and insurance companies are in opposition.
Cole stepped into this pressure cooker this week, testifying on behalf of eliminating the sunset clause.
She told her mother’s story, at least the part that fit into the limited window for individual public testimony.
“We watched her suffer and begged for answers, but none came,” she said.
Paramedics brought Gray to Scripps La Jolla on Nov. 4, 2023, after she fell and broke her ankle at home. She returned there on Dec. 6, suffering from severe respiratory distress.
CT scans and X-rays showed nothing in her lungs that could be responsible for her troubled breathing. Then a specialist used a probe equipped with a tiny camera to image the air passageways in Gray’s lungs, finally discovering the plastic impediment.
Amy Martel, the Gray family’s attorney, said that the cap appears to have been of a type attached to vials of intravenous medication. A review of Gray’s medical records, the attorney said, shows that three different medications with blue caps were used in the Scripps La Jolla emergency department on Nov. 4, when emergency workers inserted a breathing tube to restore her breathing.
“We’re in the discovery phase of trying to figure out exactly what happened,” Martel said.
Gray also spent time at a skilled nursing facility after she was discharged from the hospital, though Martel said there are no indications that she received intravenous medications outside the hospital.
Scripps declined to discuss the matter, given that it involves a pending lawsuit. Scripps attorneys did file a legal answer to Cole and Gray’s legal complaint, saying that “whatever damages or injuries were allegedly sustained” by Gray “were directly contributed to and proximately caused by the negligence of other persons, entities or otherwise,” who “failed to exercise due care or any care or caution.”
Going so long without the full use of both of her lungs, Cole explained, caused prolonged suffering that she witnessed not just before the plastic cap was removed from her mother’s airway but also after it was removed and her body continued to deteriorate for an additional seven days before she died.
“What happened to my mom highlights the need for Senate Bill 29, which closes a gap that denies justice to families like mine,” Cole said. “I’m just asking that people be given the opportunity to honor their loved ones who aren’t here to fight for themselves.”
Stuart Thompson, an attorney representing the California Medical Association, argued that continuing the pain and suffering law now in effect can increase the cost of the medical malpractice that physicians must carry. If insurance companies calculate that judgments will be larger, they will, the logic goes, charge more for premiums and those costs will be passed to patients through higher bills.
“The cost of that is reflected in what the cost of the court system is,” Thompson said. “By increasing some of these policies, it does increase the health care costs on the back end, that’s just a fact.”
Bill sponsors have countered that, since it passed, SB 447 has generated just four legal cases, indicating that it has not caused much of an impact. But Thompson said these four trials paint an incomplete picture.
“As this committee knows, the vast, vast, vast majority of court cases are settled, there’s no reporting requirement on the settlement, and so we have no information as to how this policy might have driven up costs,” Thompson said.
Bill supporters note that state law caps the amount of damages courts can award for pain and suffering in malpractice cases. Laird also stated that most states do allow pain and suffering recovery after death.
“If we do not, in some form, remove the sunset or extend it for a period of time, we go back to the old system where we will be one of four states in the United States that, if it cannot be adjudicated while you’re still alive, those rights will die,” Laird said.
Some might wonder why such damages should be accessible to survivors if the person who suffered them is no longer living. Cole said no one who has watched a loved one die in a situation would be confused.
“Watching a person that you love more than anything and that loves you the most in the world, and watching what she was going through, this horrible suffering, it’s really accountability and justice and change that we want,” Cole said.
Cole and her brother, Tyson Gray, have sued Scripps in civil court for wrongful death and medical malpractice, asserting their own pain and suffering claims in addition to one on behalf of their mother.
Their attorney, Martel, said the ability to claim for a deceased victim, plus recent increases in the capped amounts that can be awarded for medical pain and suffering, makes the size of the potential award large enough to justify the cost of litigation, which she said would be about $150,000 if the case goes to trial.
“Now you have a case that’s worth $1 million, whereas, in 2020, it would have been worth $250,000,” Martel said. “That has expanded the ability for attorneys to take these cases and still make it worth it for the client.”
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