A claim for wrongful death can be brought by family members and loved ones of those that have been lost due to the carelessness of others. A suit for wrongful death can be brought against the person or entity that caused the death of another. Recoverable damages for wrongful death include: pain and suffering, emotional distress, medical bills, loss of future earnings, funeral expenses, and punitive damages.
Few legal cases are as traumatizing to a family as a wrongful death claim. Whether the victim was elderly, a child, or in the prime of life, the family bringing the action will typically experience anger, regret, or a desire to get even with the wrongdoer who caused the fatality. In these cases, an attorney who can manage the various emotions of the family while handling their claim in a professional manner is essential.
A wrongful death claim is one that is brought by the surviving family members who have standing to bring the claim. It is a death caused by the negligent, reckless, or intentional act of another person or business entity. Each state has its own particular laws on how wrongful death actions are brought including who may bring the action. Depending on the type of case, there may be different laws regarding timelines for filing, whom to contact, preconditions before filing, standards of proof to apply, and caps or limits on what damages can be awarded.
Types of Wrongful Death Claims
Any negligent or wrongful act by someone can lead to a death so long as it was foreseeable that the act could lead to an injury. Here are some common types of cases that lead to wrongful death claims:
Nearly 50,000 people are killed in car accidents each year as a result of drunk drivers, distracted drivers, speeding, reckless driving, or any other act in which the responsible motorist failed to exercise ordinary care while driving.
Many times a product that was defectively designed or manufactured is the subject of a wrongful death action so long as the product was used in the manner intended. Typically, an expert is needed to show that the product has an inherent flaw or could have been more safely designed pursuant to the technology that existed at the time of its design or manufacture. The failure to have a safety guard on a product or to adequately warn the user can also be a basis of product liability action in a wrongful death case. Other defective products include drugs that lead to serious complications and death as a result of falsified test results or a failure to warn; defective medical devices; faulty child booster seats; and dangerous toys.
A product can also be deemed unreasonably dangerous so that negligence is presumed and the decedent’s heirs need only prove their damages.
A physician is held to the standard of care exercised by other competent physicians practicing in the same medical field under similar conditions or circumstances. Many wrongful death actions are based on a misdiagnosis or failure to diagnose a deadly condition that could have been prevented by early detection. Medical errors such as wrong site surgery, improper administration of medication, failure to monitor, or a breakdown of equipment have been the subjects of wrongful death claims in medical malpractice cases.
Most states impose caps on damages in medical malpractice cases and require certificates of merit signed by medical experts in the same field as the negligent physician attesting to malpractice.
Who Can Sue?
Typically, the children of a fatally injured parent and the surviving spouse can bring a claim. The parents of a deceased child can obviously sue unless the child was an adult and the parents were not financially dependent on their child, or if the child or parents were estranged.
A damage award is apportioned among the surviving children and spouse. If none exist, the surviving siblings may be able to bring a claim. Some jurisdictions require that an administrator of the decedent’s estate bring the action on behalf of the siblings.
Also, if a surviving spouse was separated or divorced, his or her claim for damages may be limited. The court may have to determine the extent of the contact between the decedent and the surviving spouse or any other heir who had no immediate contact or who may have been estranged from the decedent.
Further, you will have to check your state’s laws on civil unions or domestic partnerships or same-sex marriages to see if a surviving partner may bring a wrongful death action.
The following damages may be awarded in wrongful death cases:
- Value of the decedent’s earnings over their working life
- Value of their services, such as child care or household duties, reduced to present cash value
- Loss of love, society, affection or companionship
- Pain and suffering of the decedent if they survived for a time before dying
- Funeral and burial expenses
- Any medical expenses incurred before succumbing if related to the injury
- Punitive damages, if permitted, and if the conduct was willful, wanton, or exhibited a high degree of recklessness and indifference to human life or safety.
Testimony from the surviving claimants is required to demonstrate financial dependence as well as the subjective value of the decedent’s love and affection toward them.
If you or a loved one has lost someone due to the actions of another, please contact the Law Offices of Duane O. King today for a free consultation. Your case will receive the prompt attention and dedication that it deserves.