Wrongful Death cases have traditionally had lower damage awards then serious injury awards. There are, at least, two reasons for that. Serious injury cases usually have substantial future medical bill awards. In addition, serious injury cases have long term pain and suffering awards. For wrongful death cases, there are no pain and suffering damages. If the deceased lived for some period of time before dying, then the pain and suffering while still living could be recovered in the survival actions. For the deceased who died instantly, there would be no pain and suffering damages.

In other jurisdictions, plaintiff's lawyers have sought to recover pre-death pain and suffering in a wrongful death case. The theory is that the deceased saw a horrible accident coming and suffered substantial emotional distress prior to actually dying. That claim has been allowed in some jurisdictions.

Kentucky has ruled on that issue in Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920 (Ky. 2007). The deceased was killed in a  car accident and appeared to die instantly. The plaintiffs alleged that the deceased saw the accident coming and suffered substantial pre-death emotional distress. The Kentucky Supreme Court ruled that this emotional harm would have been the result of trying to recover for negligent emotional distress. In Kentucky, negligent emotional distress cases require some impact. Although the plaintiffs alleged that there was impact and that it occurred after the emotional distress began, the Court ruled that was not a correct reading of the law. In Kentucky, the emotional harm has to be caused by the impact. Since the emotional harm was pre-impact, there could be no recovery.

There was some hint of possible change in the future in Kentucky law. The Court noted that this case was not strong on the evidence of actually showing that the emotional distress. The Court suggested that the requirement of impact might be lifted in a case where there was reliable evidence of demontrable mental distress resulting in a medical injury proven by expert testimony. 234 S.W.3d at 930.

Plaintiff's lawyers in the future may want to consider raising a negligent emotional distress case where there is clear and substantial evidence of mental distress resulting in medical injuries. If that evidence can be found, the Court will consider lifting the impact requirement. Such issues could apparently be raised as either a simple negligence case resulting in the emotional harm, or a pre-death emotional harm case.