Whenever someone dies as the direct result of the negligence and or misconduct of another party, then that is classed as a case of wrongful death, and the party responsible can be sued. Where this does happen, compensation is awarded to the survivors for their losses, both financial and personal. These include things such as funeral expenses, lost income, lost companionship, plus many other things.
Filing a wrongful death claim
If a loved one of yours died due to the actions of another party, you are well within your rights to sue them for wrongful death. Examples of this include where a driver of a vehicle has caused a death, where someone working in a bar has served alcohol to an individual who then drove a vehicle and had an accident, where a medical professional or doctor has provided the wrong type of care, where a business owner has not kept their property in good repair and someone has an accidents and dies, plus many more different scenarios.
The precise statute for what is considered to be a wrongful death varies from state to state in America. As part of these statutes, it sets out exactly who is able to sue a party for a wrongful death and what the limits are for what can be awarded in compensation. These types of lawsuits are pursued for the purpose of providing widows and / or orphans with the financial support that they require.
When does a wrongful death claim apply?
A case of wrongful death comes about when the actions of a party result in the death of an individual. Where this happens then a wrongful death claim may be pursued. Some of the scenarios that can lead to wrongful death happening include any of the following:
- Vehicle accidents – when a vehicle accident happens and someone dies as a result of it, an investigation will be undertaken in order to determine who exactly was responsible for the incident in the first place. Where this is clearly a party that was at fault for the death then a wrongful death claim may be pursued. Examples of forms of negligent driving include, reckless driving, not driving within the laws of the road, and driving whilst under the influence of drugs and / or alcohol.
- Clinical malpractice – in those cases where a medical professional or doctor provides the wrong type of clinical care or makes a wrong diagnosis and the person dies as a result of this action, then surviving family members are well within their right to make a claim for wrongful death. This can be done under what are pre established statutes regarding clinical malpractice.
- Purposeful killing – the purposeful killing of an individual by another can be considered to be a case of wrongful death. For instance, where someone is murdered, not only will the perpetrator face a criminal case charge but the surviving family members are totally within their rights to sue them for the purposeful killing of their loved one – this is considered to be a civil matter and one that is completely separate from the impending criminal case.
The elements of a wrongful death case
For a wrongful death case to be able to be brought into place, there are a few elements that first need to be present. These include the following:
- The appointment of a representative for the decedent’s estate
- Monetary compensation for the surviving members of the family
- Death of an individual by the intent of negligence of another party
In line with the statute of limitations, a claim for a wrongful death must be filed within a certain timeframe. However, where an investigation has taken place and the cause of death has not been clearly determined, then a wrongful death claim can be filed after the timeframe has expired.
Damages in a wrongful death case
The main type of damages that are present in a wrongful death case come in the form of pecuniary damages. These include things such as lost inheritance, the cost of having a funeral, medical bills, support, and loss of certain services.
The vast majority of states in America abide by negligence statutes that clearly outline who exactly is allowed to receive pecuniary damages. It is typically the case that each of the states ensure that the damages received are fair and representative of the injuries sustained and the knock on effects of those.
Proving a wrongful death
Cases of wrongful death can be extremely complex, which is why it is helpful to have the best Lawyers, such as Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C. working for you. They will gather evidence on your behalf in order to prove that a death came as the result of the actions of another party. As part of this process, they liaise with expert witnesses and put together a strong case.
To be able to establish a wrongful death claim, there are four key elements that must be proven. These include the following:
- Damages – there needs to be a distinct set of damages that are quantifiable. This may include things like a loss of income, the suffering and pain experienced by the victim prior to their death, a loss of future earnings, medical bills, funeral and burial costs, a loss of inheritance etc.
- Causation – in addition to the negligence experienced, it needs to be shown that this action, or lack of action, was what was responsible for causing the death of the individual.
- Breach of duty – in order for a wrongful death to be proven, it must be established that the accused party had a duty of care to the deceased. For instance, vehicle drivers out on the road are duty bound to drive in a way that is safe for other road users and that is within the laws of the road. Similarly, medical professionals, such as doctors, are duty bound to look after the health of their patients. Where this has been clearly breached, then there is ground to pursue a wrongful death claim.
- Negligence – it needs to be proved that the death of an individual came about as a direct result of the negligence, recklessness, and / or carelessness of another party.
With a wrongful death case being a civil action and opposed to a criminal case, the burden of proof that is required is at a much lower level. To be able to prove a wrongful death case, there needs to be plenty of evidence, although this does not have to meet the same standards of the evidence required for a criminal case.
Even with the burden of proof being low, the whole process still does take a considerable amount of time to be complete. The gathering of information and interviewing expert witnesses are all very time consuming things to do and come with no guaranteed timeline. Then there is all of the paperwork and administrative duties associated with these things that takes up so much time also.
Settlement amount for a wrongful death case
There are a number of factors that are considered when working out the settlement amount for a wrongful death case, with the main one being the age of the deceased individual. Also considered are things such as burial costs, funeral expenses, medical bills, and the suffering and pain experienced by surviving family members. The latter is done by using the per diem methodology or by using a multiplier.
The way in which compensation for a wrongful death is calculated is by accumulating any and all financial damages that have been incurred as a result of the death of an individual. After determining exactly what this figure is, it acts as the benchmark for determining what level of damages the surviving family members should be awarded for their suffering and pain.
Upon the settling of a wrongful death claim, the insurance company of the party that was at fault will post out a check to the value of the whole settlement amount to the lawyer that is handling the case for you. Once they have deducted all of their legal expenses and fees, the lawyer then sends a new check to the surviving family members with their compensation amount on.
How to take action on a wrongful death case
If a member of your family has wrongfully died then you will likely be left grief stricken and not exactly sure what your next steps need to be. By contacting a lawyer, they can help you with determining just what your rights are and how much time you have at your disposal to proceed with a wrongful death claim if you so wish to. This is of particular importance given the fact that if you do not file a wrongful death lawsuit in the allotted amount of time, it may mean that you will not be able to make another claim in the future. So as you can see, it is of utmost importance to contact a lawyer as soon as physically possible.