Are you wanting to bring a claim for wrongful death? An estimated 200,955 people died in the U.S. from unintentional injuries in 2020, accounting for around six percent of all deaths. Unintentional injuries or accidents were also the fourth leading cause of death in the U.S., with the highest death rates amongst the elderly.

In some circumstances, death as a result of an unintentional injury is due to the fault of another party and can leave that party liable for a wrongful death lawsuit. For example, a drunk driver can unintentionally collide with another motor vehicle, resulting in the death of the other driver.

According to the National Highway Traffic Safety Administration (NHTSA) an estimated 31,720 people died in motor vehicle traffic accidents from January to September 2021. This is also the leading cause of wrongful death claims.

Although an unintentional accident or injury can result in wrongful death,  wrongful death can also occur intentionally, for example when a person is killed through murder or during a fight when a strike to the head causes a head injury, eventually leading to death.

Other causes of wrongful death may include accidents in the workplace, medical malpractice, defective products, unsafe premises and criminal actions such as shootings and stabbings.

What is Wrongful Death?

Wrongful death is legally defined as the taking of the life of an individual resulting from the willful or negligent act of another person or persons. A wrongful death claim can be brought by the surviving family members on behalf of the deceased against the party responsible for the death.

Wrongful death claims are a type of personal injury claim in which the surviving family members are compensated for the loss of their loved one and allow them to seek justice on their behalf.

In order to prove wrongful death, the plaintiff must prove that the defendant was guilty of negligence by a “preponderance of the evidence.” This is a much lower standard than in a criminal case where a  person must be found guilty “beyond a reasonable doubt.”

Negligence is the failure to act with the level of care required to prevent injury or harm to another and is judged according to how a reasonably prudent person would have behaved under similar circumstances. A claim for wrongful death may be filed where the negligent actions of a person result in the death of another person.

What Must Be Proved?

In order to bring a successful claim for wrongful death, the plaintiff must be able to prove the defendant was negligent based on the following four elements:

Duty of Care – The plaintiff must prove that the defendant owed a duty of care to the deceased. For example, in the case of a motor vehicle accident, the plaintiff must prove that the defendant had a duty to operate their vehicle safely with due regard to other motorists and to obey the rules of the road when driving.

Breach of Duty  – It must further be proven that the defendant breached the duty of care they owed to the deceased. In the situation of a car accident, this can be proved if the defendant was driving while intoxicated, speeding or if they failed to stop at a red light. The plaintiff must prove that, under similar circumstances, a reasonable person would have acted differently than the defendant did.

Causation – The plaintiff must also prove that the defendant’s breach of their duty of care directly caused the injuries which led to the wrongful death. The defendant’s negligence must have been the cause of death.

Proving Damages

Damages – The final element that must be shown is that the death of the victim resulted in a substantial loss for the plaintiff which can be quantifiable in monetary terms. This can include funeral costs, medical expenses,  loss of future income, pain and suffering,  and the loss of companionship, intimate relations and support also known as loss of consortium damages.

A plaintiff may also be entitled to damages for the personal injury suffered by the deceased before they died. These are known as ‘survival actions’ and can include their degree of consciousness and the severity of their pain. It can also include awareness of their impending death and the duration of their suffering.

An experienced lawyer specializing in the area of wrongful death such as Gina Corena & Associates can help you to assess the merits of your case and to establish the necessary elements needed to bring a successful case.

Who Can Be Awarded Damages for Wrongful Death?

Persons who can bring a claim for wrongful death and who can be awarded damages will depend on the state law. However, damages for wrongful death can typically be awarded to:

Spouses – The deceased’s spouse will usually be able to claim for the lost companionship and support that resulted from the deceased’s death, in addition to their own grief and emotional trauma.

Children –  Minor children may also be entitled to damages for the loss of comfort, support and lost benefits from their relationship with their parent.

Parents – The parents of a minor child who died as a result of wrongful death can also recover damages for the loss of their relationship and emotional trauma. 

Depending on the circumstances, a court can also award punitive damages in a wrongful death case in addition to compensatory damages. Punitive damages are awarded as a means of punishing the defendant where their actions were particularly reckless or egregious resulting in the victim’s death, in order to deter similar behaviour in the future.

Statute of Limitations

Before bringing a claim for wrongful death, the claimant must ensure they are within the period prescribed by law in which to bring such a claim. This is known as the statute of limitations and varies from state to state. In most states, a wrongful death claim must be filed within two years from the victim’s death for compensation to be awarded.

8 Steps to Take If You Suspect Medical Malpractice

Many of us expect to receive quality treatment whenever we seek medical care from our trusted physicians. It can be disconcerting when we suspect them of malpractice, and their actions cause us irreversible harm. If you or a loved one suffered from medical negligence, here are eight steps you need to take to insure your rights are protected:

Get treated by another health professional

Seeking medical attention from another doctor should be a priority. It is imperative that you focus on your health, especially if you are suffering from complications due to your doctor’s negligence. Find a competent medical professional that you’re comfortable with. Inform them of your unfortunate situation and be as objective as possible. Make sure the second doctor knows your previous diagnosis, treatments that were conducted, medications given, and your initial symptoms. Delaying treatment can worsen your situation and place your health at risk, so make sure to act fast. 

Secure copies of your medical records

Medical records serve as crucial evidence in a medical malpractice case. These documents contain detailed information such as your medical history, treatments, diagnosis, medications, tests, symptoms, lab results, exam evaluations, and other pertinent health details. It would be best to obtain a copy of your medical records before filing a malpractice claim to prevent the other party from altering them. While falsifying these documents is illegal, some health professionals are guilty of committing fraud to avoid liability. 

Contact an experienced medical malpractice attorney

Since medical malpractice cases are highly complex, you should never attempt to represent yourself. Devote your time and efforts to recovering from your injuries rather than waste your energy trying to win a legal case. Make sure to hire an experienced and reliable legal team such as Berger Law New Orleans, dedicated to fighting for your rights so you can obtain the justice you rightfully deserve. 

After hiring a medical malpractice lawyer, provide them with all your collected information, and remember to be as honest as you can. Describe your entire experience in detail, and don’t be afraid to ask questions regardless of how trivial they may seem. In addition, never speak with the liable party or sign any crucial documents without your lawyer present. 

Educate yourself on wrongful death claims

In medical malpractice cases, time is of the essence since the statute of limitations for filing a claim varies by state. Even if you already have legal assistance, you must educate yourself about the entire process and your rights as a victim. Read up on the existing local laws and try to learn the basic legal terms. Some examples of a medical error that can result in a lawsuit are: 

• Premature discharge
• Failure to diagnose
• Misdiagnosis
• Prescribing the wrong medication
• Possible fatal infections obtained in the hospital
• Incorrect surgery
• Operating on the wrong body part
• Failure to follow-up
• The patient is experiencing persistent pain after a surgery

By equipping yourself with valuable information, you will be more confident and prepared to pursue your medical malpractice claim. 

Document your experience

Being a victim of medical malpractice can be traumatic and cause you to forget important details. As soon as you suspect medical negligence, create a journal to document your experience. Note when it started, your conversations with the negligent doctor, how they addressed your condition and other relevant medical details.

Describe your prevailing sentiments and how the medical error affected your daily living. For instance, if the incident forced you to resign from your job or caused emotional conflicts in your personal relationships, make sure these are documented. 

Wrongful death claim

No matter how minor they are, list down as much information as possible. Daily listing can help illustrate the extent of your economic and non-economic damages, which would help your lawyer build your case.

You should also list the names of those willing to serve as potential witnesses, such as the nurses who assisted the doctor, your co-workers, friends, loved ones, and anyone involved in the medical malpractice or who witnessed how the incident impacted your quality of life. 

Obtain other relevant evidence

Aside from your medical records, you should also gather other pertinent documents that might be useful to your case. These include:

• Medical invoices and bills
• Receipts for out-of-pocket related expenses (transportation, home upgrades or modifications, and caregiver fees)
• Prescription drug history
• Health insurance
• Tax records or pay stubs showing income loss due to your condition
• Correspondence with the suspected doctor or their liability insurer
• Photographs before and after your injury
• Death or birth certificate, or autopsy report of your loved one ( in case you’re not the victim)
• Other related documents 

Avoid venting out on social media

While it is tempting to solicit emotional support online, refrain from discussing your case on social media. Remember that whatever you share can be taken out of context and be used against you in court, so make sure you digitally socialize with caution. Avoid posting photos that show negative behaviours or place you in a bad light.

Discuss with your lawyer how to respond should someone ask about the status of your claim. If possible, consider stepping away from social media while your medical malpractice case is still ongoing.

Avoid communicating with the negligent doctor

Once the suspected doctor finds out that you’re building a case against them, they will do their best to refute your claim. You should avoid talking about your case with the negligent doctor or to anyone involved in the incident, as it could jeopardize your chances of getting a favourable outcome. Always be cautious of your statements and make sure that all case-related correspondence is coursed through your attorney. 

Pursuing a medical malpractice claim can be stressful and time-consuming. Make sure to follow these steps to increase your chances of winning your case.

The guidance in this article can help you if you have recently lost a loved one and feel you may have grounds for bringing a wrongful death claim.