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Wrongful death claims can be brought in court if a person dies because of an occurrence where a second party can be held liable. According to "common law", that is, the law brought to the United States by people from England, any claim of wrongdoing in a death could not be used in court, as it was thought that the claim "died" with the deceased. The US changed that aspect of common law, and now in all 50 states there are statutes allowing family members to sue a second party for causing a wrongful death.
As in all civil matters, there are statutes of limitations on wrongful death lawsuits. This means that there is a predetermined amount of time (which varies from state to state) that the relatives of the deceased have to file the wrongful death claim. Usually, the claim must be filed within this period which starts when a family member "discovers" that the death was one which could be considered under a wrongful death claim. There are times, however, when a wrongful death claims statute of limitations may be shortened. If the wrongful death occurred as the result of a personal injury, and the decedent did not file a claim for personal injury within the statute of limitations, the claim may be seen to have "died with the decedent".
There are a different set of monetary damages that can be claimed in a wrongful death lawsuit. Aside for any claims for funeral expenses and medical bills, there are additional damages that can be awarded. "Pecuniary injuries", or financial injuries, such as lack of support for the future can also be awarded. Lack of the prospect of inheritance and services (such as the "service" of being a parent) can also carry monetary awards. If pecuniary injuries are awarded in a wrongful death lawsuit, there will also be interest paid on the damages from the date of death.
Sometimes, a wrongful death case is not just brought against a single defendant, such as in the case of murder or an auto accident. If the decedent died in the care of an institution, such as a nursing home or even prison, more than one party might be responsible for the death. The people taking direct care of your relative, as well as the institution itself, may be liable for the death of an individual in their care. The only way to know for sure who you should name in your lawsuit is to hire a capable wrongful death lawyer to handle your case.
If the cause of a person's death could be considered a criminal act, such as in the case of murder or negligent homicide, there will often be a criminal case as well as any civil case you bring in court for wrongful death. Even if the party responsible for the wrongful death is acquitted of any criminal wrongdoing, you still are able to sue them in civil court. The burden of proof to win damages in a wrongful death lawsuit is different than that which must be proved in a criminal case, so you can still win damages even if the responsible party is not found criminally guilty.
Differing amounts of pecuniary damages are awarded if the deceased in a wrongful death lawsuit is elderly. It is often hard to judge the future earning potential of someone who is no longer working, or who may be retired. It is also more difficult for juries to put a value on the "services", such as companionship of an elderly person, as it is harder to know how much longer they may have lived had they not died a wrongful death. The adult children of elderly decedents are not awarded as much for the guidance and support they will be missing, because it is felt that they are less in need of this support (as opposed to the young children of a younger adult).
Not all wrongful death cases must go to a court or trial. Civil cases can also be decided by mediation. Mediation happens when both parties involved agree to sit down and discuss the case while an impartial mediator or facilitator helps the conversation along. Many times, cases can be settled and damages awarded if the guilty party agrees to mediation and sits down to settle how much to pay. If you feel that a trial may not be the best situation for your case, ask your wrongful death lawyer about mediation.
Most lawyers who handle wrongful death lawsuits are also considered personal injury lawyers. Some may not be listed under "wrongful death attorney" or similar headings, so you may wish to look for a personal injury lawyer and then contact them to see if they can handle your wrongful death case. Since it is a very emotional time after the death of a loved one, make sure that you find a wrongful death lawyer who you are comfortable with, who seems caring and compassionate, and willing to fight for your case. The Internet, ads and personal recommendations are all good places to start your search for a wrongful death lawyer.
The death of a child is a particularly awful occurrence, which can be made more awful if it happened because of someone's negligence. If there is cause to believe that a wrongful death case can be brought into court over the death of a child, the rules for awarding damages are a bit different. There is no way to judge the future earnings or potential for a child, so often the pecuniary damages awarded to parents are small compared with a wrongful death case of an adult. Some states also allow wrongful death cases to be brought on behalf of an unborn child, but it varies, so it is important to consult a wrongful death attorney to see if you have the legal right for this sort of case.
Generally, anyone who causes the death of another person because they were negligent or otherwise guilty of wrongdoing can be sued for wrongful death. The wrongful death lawsuit happens in civil court, and it does not take the place of any criminal charges that might be brought against a party for causing the death of another. Doctors, other medical staff, drivers in automobile accidents, pharmaceutical companies and murderers have all been named in wrongful death lawsuits.
There are certain requirements that you must meet if you plan to file a wrongful death lawsuit. Contact a wrongful death attorney in your area to find out the exact proof necessary in your state, but here are some general guidelines. The death of the person was caused by another party's negligence (there are many ways that this can occur: accidents and medical malpractice are two of them). You must also have surviving family members of the deceased person to bring the claim, who are suffering monetary damages from the death. Finally, there must be an individual appointed to be in charge of the deceased estate.
If you are in doubt as to whether the death of a loved one is seen as a wrongful death, there are some resources you can use to decide. The best resource of all is a wrongful death lawyer, because they are aware of all the state laws in your area, and they can be sure to tell you whether or not you have a case.
|Sheri Ann Richerson|