Metropolitan News-Enterprise

 

Wednesday, May 26, 2004

 

Page 3

 

Sonís Ignorance of Fatherís Demise Not Absolute Bar To Wrongful Death Suit, Court of Appeal Rules

 

By a MetNews Staff Writer

 

A mentally disabled sonís ignorance of his fatherís death does not, as a matter of law, preclude him from showing damages in a wrongful death suit, the Fourth District Court of Appeal ruled yesterday.

Writing for Div. One, Justice Cynthia Aaron said San Diego Superior Court Judge Patricia Y. Cowett erred in denying surgeon Harry Knowlesí summary judgment motion as to the wife, daughter and one son of Anatalio Labo in a suit alleging Lobo died as a result of Knowlesí medical malpractice. Since the three learned of the possible malpractice by Knowles, the doctor who performed Laboís renal surgery, more than a year before filing suit, Knowles was entitled to summary judgment on statute of limitations grounds, Aaron said.

But Cowett was right to deny summary judgment as to a fourth plaintiff, another son, Aaron said. Lawyers for Knowles argued Nard Labo could not show he was damaged by his fatherís death since undisputed evidence showed that Nard Labo, who is mentally disabled as a result of a head injury, believes Anatalio Labo is still alive.

Aaron said it was not clear whether Nard Labo believes his father is alive or is merely unaware of his death, but she explained that in neither case did that mean the son could not show he was entitled to reasonable compensation for the loss of Anatalio Laboís love, companionship, comfort, affection, society, solace, or moral support.

The justice cited Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal.App.3d 709 for the proposition that severe mental retardation does not necessarily preclude a child from appreciating the loss of parental affection.

ďFagerquist demonstrates that courts will not simply presume that persons with mental defects are unable to suffer wrongful death damages,Ē Aaron wrote. In fact, a childís mental deficiencies may add to the severity of the damages suffered, she observed.

She elaborated:

ďIn this case, Knowles has not produced any evidence regarding the extent of Nardís injuries or the manner by which those injuries render Nard unable to suffer the loss of his father. There is nothing in the record to suggest that Nardís guardian would not be able to demonstrate that Nard has suffered from the loss of his fatherís love and companionship, despite Nardís lack of knowledge of his fatherís death.Ē

The case is Knowles v. Superior Court (Labo), D043323.

 

Copyright 2004, Metropolitan News Company