The Untimely Loss Of A Loved One
When an individual is killed as a result of another individual’s negligence or wrongdoing it is called wrongful death. When a loved one is fatally injured, the effects on family and friends can be devastating. With the assistance of a personal injury lawyer, aggrieved family members have a legal right to seek compensation for their losses and suffering through a wrongful death lawsuit.
All 50 states have wrongful death statutes which allow aggrieved beneficiaries and dependents to seek compensation for the death of a loved one from the negligent party. Contact our office and speak to a wrongful death attorney to go over your legal options.
The History of Wrongful Death Laws
For hundreds of years, wrongful death laws did not exist in our country. Under common law, any right to a personal injury claim was lost when the injured individual died. This often left dependents and beneficiaries with huge medical bills, a significant loss of income, and other financial losses, not to mention the deep emotional loss of a loved one.
To correct this injustice, individual states have enacted wrongful death statutes. These laws allow for dependents and beneficiaries (i.e. a partner, children, other next of kin) to sue the negligent party responsible for their loved one’s death. Because each state has enacted wrongful death statutes independent of one another, the laws in each state vary. Wrongful death statutes also vary based on the nature of a case.
Wrongful Death Statute of Limitations
Every wrongful death statute includes a statute of limitations, which restricts the time between the wrongful death and the time legal action is taken. In a non-fatal personal injury case, a statute of limitations usually begins when the injury occurs. In a wrongful death case, the statute of limitations typically starts at the time of death. There are some situations where the statute of limitations may be extended based on circumstance. For example, in some case, the statute of limitations in a wrongful death case may begin at the time the negligence or wrongful action was discovered.
Compensation in Wrongful Death Lawsuits
Wrongful death statutes allow the aggrieved dependants and beneficiaries to seek compensation for both economic and non-economic damages. Economic damages are the out-of-pocket expenses incurred as a result of the wrongful death. The plaintiff has the right to seek compensation for medical expenses, loss of income, funeral expenses, and other out-of-pocket costs. Non-economic damages are related to the pain and suffering of survivors — for example, loss of consortium, emotional suffering, and the like.
Wrongful death statutes also place a limitation on the amount of money that can be awarded to the plaintiff in a wrongful death case. In many states, wrongful death statutes reflect concern about the right to non-economic damages. Non-economic damages are often capped at a certain amount, thus limiting the amount of compensation the plaintiff can seek for pain and suffering. Some states, such as New York, do not place caps on the damages one can receive in a wrongful death case. However, attorney’s fees may be capped in wrongful death lawsuits, limiting the percentage of the award that goes to the plaintiff’s attorney.
If you would like to learn more about the wrongful death statutes that apply to your case, we would like the opportunity to help. Please contact the law office of Oshman & Mirisola, LLP to learn more about your legal rights and options in a wrongful death lawsuit.
Wrongful Death Cases
Generally speaking, a wrongful death lawsuit can be filed in any situation where another person is at fault for the victim’s death. A wrongful death lawsuit can be filed by the dependants and beneficiaries of the decedent to seek compensation for their losses and suffering. There are many situations where a wrongful death case may be appropriate.
Medical malpractice that results in death comprises a large number of wrongful death cases filed each year. Medical malpractice is defined as a medical professional’s failure to act with the skill, care, and prudence required of a member of his/her profession. Examples of medical malpractice that can result in a wrongful death case include failure to diagnose, misdiagnosis, prescription error, surgical error, birth injury and more.
Approximately 800,000 people are injured as a result of medical malpractice each year. Many cases are fatal. One national study discovered that approximately 40 percent of all autopsy reports show a misdiagnosis or a failure to diagnose. In some cases, it may not be clear that medical malpractice was the cause of your loved one’s death. Therefore, it is very important to speak with a knowledgeable attorney who can evaluate your situation to determine your rights and options in a wrongful death case.
Fatal personal injury accidents are another major type of wrongful death case. Motor vehicle accidents make up the majority of accident-related wrongful death cases. Airplane crashes, train wrecks, work related accidents, slip and fall injuries, dog bites, exposure to toxic substances, fire accidents, and other fatal injury situations are also examples of wrongful death cases.
When a defective drug or product causes a person’s death, their survivors may also be eligible to file a wrongful death case. Drug manufacturers and the makers of all products sold in the United States are subject to strict liability. With strict liability, anyone involved in the production or sale of the defective product can be held liable for the injury. Proving negligence or intentional wrongdoing is not required to receive compensation in a wrongful death case. Strict liability also applies to situations where a party is engaged in dangerous activities, such as “blasting” in a city or keeping wild animals. If a person is injured or killed as a result of these acts, a wrongful death case can be filed regardless of how careful the party was.
Wrongful death cases can also arise from criminal acts that cause fatal damage to a victim. For example, a man is fatally shot during a burglary of his family’s home. The prosecutor will file the criminal charges against the burglar to determine his guilt or innocence, but the surviving family members have the right to file a separate wrongful death lawsuit to seek compensation for their losses and suffering against the burglar.
In any situation where another party may be culpable for the death of a loved one, it is wise to seek legal advice. It is important to keep in mind that all wrongful death cases are subject to a statute of limitations which restricts the time you have to file. If you would like to learn more about wrongful death cases, please contact us.
It is important to choose a law firm experienced in aggressively pursuing wrongful death claims to the maximum benefit of their clients. At Oshman & Mirisola, LLP, our attorneys give proactive attention to the needs of each family.
Contact a Wrongful Death Attorney
Contact us today at 1 (800) 400-8182, or contact us online for a free case evaluation. Our firm utilizes the contingency fee system, where we not only provide free consultations, but never charge a fee unless we are successful in obtaining a settlement or jury verdict on your behalf.
Frequently Asked Questions About Wrongful Death Claims and Lawsuits
- What is a wrongful death claim?
- Who can file a wrongful death case?
- Can I bring a wrongful death action if the deceased never held a job?
- Can someone sue for the pain and suffering of a decedent?
- What if a person dies before bringing a personal injury lawsuit?
- What kinds of damages are recoverable in these cases?
- When someone dies, what is the difference between the civil and criminal cases that can be brought regarding the death?
- What is the first step in pursuing a wrongful death claim?
- How long will my wrongful death case last?
What is a wrongful death claim?
In general terms, a wrongful death claim refers to a cause of action that may be brought by certain family members of a decedent whose death was precipitated by the wrongful conduct of another. The wrongful act that resulted in death may have been intentional, reckless, or negligent. In cases where a dangerous product caused the death, it may not be necessary to show wrongful conduct in order to recover.
Who can file a wrongful death case?
A surviving spouse can bring a wrongful death claim. If there is no surviving spouse, the children may bring the death claim. If there is neither a surviving spouse or surviving children, the parents of the decedent may pursue the wrongful death claim. Absent a surviving spouse, surviving children, and surviving parents, the administrator of the decedent’s estate can sue on behalf of the estate.
Can I bring a wrongful death action if the deceased never held a job?
Yes, even if the decedent never held a job, they may have contributed in some other way to the family. A good example of such a decedent is a housewife, who contributes services, guidance and nurturing to her family. These contributions are quantifiable as “pecuniary losses” in a wrongful death action.
Can someone sue for the pain and suffering of a decedent?
Yes, in addition to the wrongful death, a decedent’s family may recover damages for the pain and suffering that the decedent endured prior to death.
What if a person dies before bringing a personal injury lawsuit?
It depends on whether a person dies as a result of the injuries or from unrelated causes. If a person injured in an accident subsequently dies because of those injuries, that person’s heirs may recover money through a lawsuit. If a person with a personal injury claim dies from unrelated causes, the claim survives in most cases and may be brought by the executor or personal representative of the deceased person’s estate.
What kinds of damages are recoverable in these cases?
Normally, the following are recoverable:
- Expenses associated with the death (medical & funeral)
- Loss of victim’s anticipated earnings
- Loss of victim’s benefits (pension, medical coverage, etc.)
- Loss of inheritance
- Pain and suffering of the survivors
- The loss of care, protection, companionship to the survivors.
When someone dies, what is the difference between the civil and criminal cases that can be brought regarding the death?
A criminal case arises when the government seeks to punish an individual for an act that has been classified as a crime. A civil case, on the other hand, usually has to do with a dispute over the rights and duties that individuals and organizations legally owe to each other. The burden of proof is higher in a criminal case, and the penalty imposed is a criminal sanction, whereas, in a civil case, the defendant will typically have a monetary judgment entered against him/her.
What is the first step in pursuing a wrongful death claim?
Given that wrongful death claims and survival actions generally involve a variety of complex legal issues, the first step is to contact an attorney. An attorney at Oshman & Mirisola, LLP should be contacted as soon as reasonably possible because there are statutes of limitations and possibly other critical deadlines that may impact the case.
How long will my wrongful death case last?
The vast majority of all cases, including wrongful death cases, are settled prior to trial. Some cases are settled prior to the filing of a lawsuit, while others are settled during litigation or even on the “steps of the courthouse” just before trial. A wrongful death case, if litigated to trial, could last a number of years. One who pursues a wrongful death case should understand from the outset that a quick resolution cannot be guaranteed.