There is no quick or easy answer for dealing with the pain of losing a close family member in a tragic accident. However, there is an answer for who may file a wrongful death suit after a catastrophe.
When the death of a spouse (including a same-sex spouse), child, or parent directly results from a person’s or company’s negligence, the family may file a wrongful death civil suit.
The untimely and unnatural passing of a loved one is deeply personal, the devastation is pervasive, and the changes to the family structure are permanent. A wrongful death changes an entire family. While is it understandably possible for a family to believe there can be no real justice for a death that didn’t have to happen, a wrongful death claim can result in accountability and compensation. Accountability is a form of justice that can lead to emotional healing,
There are state-specific time constraints and documents required to initiate a claim for wrongful death compensation. A representative of the estate( either the named executor of the deceased will or a willing family member) must petition the court to file the claim on behalf of those qualified to receive financial compensation.
A personal injury lawyer can help a grieving family navigate this complex legal process. The best way to get started is to get a copy of the police, a copy of the death certificate, and seek legal representation.
Pursuing a wrongful death claim is far from a straightforward process. Procedural errors can derail a case quickly. Having a personal injury lawyer fight for your family puts your interests in good hands.
What Your Lawyer Must Prove and What You Stand to Gain
There is a burden of proof that must be met( by the plaintiff) in a wrongful death claim—although not impossible, this may be difficult to do without the guidance of a lawyer with access to investigators, witnesses, and experts whose credibility can show:
- The person or entity whose negligent actions ( or omissions) caused the death has legal obligations when it comes to the safety of others
- In the case of this particular death, they failed to uphold their duty and obligation
- The death in question resulted from the defendant’s negligence
- What the plaintiff (s) are losing because their family member is no longer with them
Some of the most common causes of wrongful death claims include;
- Motor vehicle accidents
- A medical malpractice incident
- A workplace injury
- A defective product
- Premises liability accidents
Anyone can be at fault for acting negligently—individuals, companies, and government entities.
Getting behind the wheel of a car or truck is negligent and irresponsible behavior. More than 32,000 people die each year in motor vehicle accidents.
A physician who fails to diagnose a patient correctly or prescribes a harmful medication is negligent. Medical malpractice is the third leading cause of death in our country.
A manufacturer or distributor who knowingly sells a defective or untested product is negligent, as is a property owner or landlord who fails to maintain a safe environment for visitors.
When a workplace exposes a worker to toxic or hazardous materials or when the workplace fails to meet OSHA's safety standards, they may hold an employer negligent.
Failure to replace or repair broken traffic safety signs and signals is dangerous and negligent.
If negligent behavior causes an injury, the victim may file a personal injury claim. If the injury culminates in death, the surviving family may file a wrongful death claim.
Calculating the Financial Impact of the Loss
At first glance, it may not be possible for immediate family members to fathom the financial impact of their loss. Aside from the obvious medical bills incurred before the death and the actual cost of final funeral or cremation expenses.
A wrongful death attorney has the resources to project the long-term financial losses a family is likely to expect. This is especially important when the deceased was a source of income for the family.
Using personal information such as the age, health status before the accident, the educational background, and chosen profession of the deceased, a personal injury lawyer can often use the testimony of economists, tax experts, and accountants to place a dollar value on expected financial losses.
Some things your wrongful death lawyer will take into account when it comes to loss of financial support are:
- The lifetime wages expected if the deceased had lived
- The loss of inheritance
- The value of services that the victim would have provided to the family, such as childcare, cooking, household maintenance
- The value of lost investments
- The value of company-sponsored benefits
- The administrative costs of settling the estate
In the case of a non-wage earner, the amount of financial compensation may depend on the cost of replacing the services they provided to the family unit. As an example, a stay-at-home parent typically provides child care, housekeeping duties, cooking, and driving children to and from school or activities. These functions may have a monetary replacement value in a wrongful death case.
How does one measure the value of human life lost in an accident? It could be the emotional void left in the lives of those family members who loved and depended on the deceased, combined with the contributions they might have made to society throughout their natural, expected lifetime.
Above and beyond the dollar value, non-economic losses are legally compensable. When determining just compensation, consider the loss of companionship, love, affection, moral and spiritual guidance, and emotional stability.
There Is a Choice—Wrongful Death or Survivor Action
In a survivor action claim, the estate acts on behalf of the deceased and asks for any compensation the deceased could claim if they had survived the accident. A family can initiate both a wrongful death claim and a survivor action claim simultaneously.
Each action has a different, complicated distribution method and tax implications.
Those facing the death of a family member must consult a wrongful death attorney to cover all bases and ensure the family will recover all they deserve under the law.
In addition to the costs of medical treatment and supplies, additional damages a survival action may recover include:
- Lost income from the date of injury up to the date of death
- Loss of future wages and benefits owed or earned by the victim
- Pain and suffering
If a family seeks compensation from both wrongful death and survivor action claims, you cannot duplicate your damages. There could be a valuable advantage to filing both, in the allowability of pain and suffering in a survival action.
This may include:
- Emotional distress
- Physical pain
- Sleep disturbance
- Loss of enjoyment of life
Proving Pain and Suffering
Proving the reality of and the consequences of pain and suffering will likely depend on an in-depth review of medical treatment bills, physician’s notes and medical records, photographs of the victim’s physical injuries, expert medical testimony, and the results of any psychiatric evaluation, as well as testimony from family, friends, and co-workers.
There Is a Difference
Although pain and suffering are compensable in a survival action award, the total monies awarded are subject to estate tax and can be used to satisfy any liens against the estate, in a wrongful death case, they are not. Additionally, the statute of limitations for a wrongful death claim is two years from the death, while the time frame to file a survival action is two years from the injury date.
The differences are subtle, confusing, and important. Families dealing with a tragic loss of a loved one from another's negligence should direct any questions to an experienced wrongful death attorney.
Amount of Compensation
Every accident is different, just as each case structure is unique. How a family chooses to seek justice and move forward after a devastating loss is a personal choice based on many factors and consequences. In the case of a motor vehicle accident, one family member can survive the crash while another succumbs to their injuries. In this instance, you might file a personal injury claim, wrongful death claim, and survival action claim at the same time.
Some factors that affect wrongful death claims and settlements include:
- The circumstances of the accident
- The direct cause of the accident
- The total cost of medically related charges
- Actual lost wages and job-related benefits
- Anticipated future loss of income, benefits, commissions, expected promotions
- The deceased’s pain and suffering
- The families’ pain and suffering
- Mental anguish for the loss of companionship
- Funeral, burial, or cremation expenses
- The administrative costs of probate
Death Affects Family Dynamics
Grieving is a personal journey, even for young children. The death of a loved one is an intensely emotional time.
Everyone in a family unit may behave differently—it is not unusual for those left behind to experience:
- Severe stress
- Panic attacks
- Social withdrawal
How Long Does a Wrongful Death Case Take?
There is a plethora of evidence to review and evaluate in any personal injury case—especially one that results in death. Realistically it can take months just to request and receive access to all of the needed reports, documents, and witness statements.
The whole process, from the date of death to the day a family receives a check, can take time.
During this time, a grieving family often struggles financially to keep their heads above water. Insurance companies representing the defendant count on a family accepting a low ball pre-trial settlement. Their focus is to settle quickly and pay out as little as possible. A wrongful death lawyer can help a family determine a fair and just settlement amount.
Whether your family is dealing with the death of a loved one caused by a motor vehicle accident, medical negligence, product defects, or premises liability, contacting an experienced lawyer is a necessary step to seeking just compensation.