Who Can File A Wrongful Death Lawsuit

Who Can File A Wrongful Death Lawsuit
Wrongful Death Lawsuit

Who Can File A Wrongful Death Lawsuit?

A wrongful death claim is a lawsuit filed against an individual who has allegedly caused the death of another. The cause of the death is usually negligence or an intentional act. Even if the intentional act is a crime, an appropriate party may file a civil wrongful death case if the person who caused the death has assets.

Who Can File?

State law governs a wrongful death lawsuit, so the exact rules vary. But the general rule is that the representative of the decedent’s estate will file the derivative lawsuit, usually for the benefit or on behalf of those surviving family members injured by the death.

Those family members usually covered are referred to as the real parties in interest and include:

  • Minor children
  • Dependent adult children
  • Surviving spouse—unmarried romantic partners are often but not always excluded
  • Parents of unmarried children
  • Some states permit the parents to sue for the loss of a fetus
  • Siblings may be permitted or grandparents, especially if they will be raising a surviving child
  • Other financial dependents (usually required to have been living with the decedent)

Again, which rules apply to your particular case depend on your relationship to the decedent, where the death took place, the status of the decedent’s estate, and who is suing whom. A skilled and knowledgeable wrongful death attorney can navigate these complexities on your behalf.

When Does a Wrongful Death Claim Apply?

Usually, a wrongful death claim arises when the deceased individual would have had a personal injury claim had the defendant not killed the victim. If there would not have been a reasonably strong personal injury case, it is unlikely that some states would recognize a wrongful death claim. Some of the more common circumstances where one can file a wrongful death claim include:

Intentional Killing

A person with standing can also sue a person accused of murder for the wrongful death of the victim. This civil lawsuit is completely separate from the criminal action charging murder and, as a tort, requires a far lower burden of proof. The state must prove the defendant guilty of murder by the “beyond a reasonable doubt” standard, while the standard for a civil tort case is usually “more likely than not.” If the standard proves the civil complaint, the plaintiff will be able to collect damages from the defendant. There are no damages provided for in a criminal proceeding.

Negligence & Motor Vehicle Accident Fatalities

People often bring wrongful death cases when a victim dies as a result of a motor vehicle accident. In a car accident case, the plaintiff must show that the at-fault driver’s negligence resulted in the accident, which caused the decedent’s death. If there would not have been a viable personal injury case against the driver in the case of the decedent’s survival, it is unlikely that a wrongful death claim would be successful either.

Medical Malpractice

If a doctor wrongfully causes a patient’s death, the physician may also be held liable for damages for wrongful death - in addition to whatever damages they pay for the malpractice itself. In these circumstances, the availability of wrongful death varies state by state and often is more difficult to allege and prove than not medical malpractice wrongful death.

What Do You Have to Prove

The person filing on behalf of the estate or its beneficiaries must meet the same burden of proof that the decedent would have had to meet if he or she had not died. Generally, this will require that the party filing the lawsuit will have to prove the claim under a standard commonly referred to as the “preponderance of the evidence.” It is sometimes also referred to as “more likely than not.” If translated into numerical terms, this is usually understood to mean that the way the plaintiff says the incident occurred is more than 50 percent likely to be the way it occurred.

Elements of Intentional Tort Claim

An intentional tort is a civil (that is, not criminal) legal case alleging that an individual, the defendant, intentionally acted against another individual and that action caused harm to the second individual. When there has been an injury, the underlying tort is probably assault and battery. At its simplest, assault, in tort law, is the threat of harmful acts; battery is the act itself.

The elements of the cause of action of assault and battery include:

  • Intent, either to do the act that caused the death or specifically to cause the death. The difference is that I may have intended to throw something at you, or I may have intended that the object I threw at you hit you in the head and kill you.
  • A physical act or contact. The contact need not be violent but must be physical. For assault, there must be a reasonable likelihood that the defendant could have carried out the offensive contact or act.
  • That is harmful or offensive to the plaintiff. If the plaintiff did not want the contact or act, then the contact was harmful or offensive. In wrongful death, of course, the contact will have been sufficiently harmful to cause the death of the victim.
  • That the plaintiff did not consent to the act or contact, a plaintiff cannot sue for acts or contacts to which the plaintiff previously consents. This prohibition is a major factor in medical malpractice since if the health provider does not obtain informed consent for surgery, then the act of surgery is actually a medical battery.
  • The act or contact caused an injury to the plaintiff. Again, if the act resulted in the decedent’s death, it is likely that it injured him or her.
  • For which monetary damages the plaintiff is seeking. Future losses arising from the loss of the decedent and funeral costs are common.

Elements of Negligence Claim

The exact details of the elements of a negligence claim, particularly for personal injuries, vary from state to state.

But the general rules are that:

  • The defendant owed a duty to the plaintiff - Most states deem, for example, that a driver’s license is a privilege rather than a right. As part of receiving that privilege, the state imposes a duty of care to drivers, pedestrians, and any other users of the road on all licensed drivers.Policies for determining when an athlete can return to competition (generally medical staff, not coaches)
  • The defendant breached that duty. Driving negligently or recklessly, which can include speeding, DWI/DUIs, and failing to observe traffic signals or signs, will almost always be considered a breach of the duty to drive carefully and safely.Policies requiring written medical authorization for the student to return to play
  • The breach injured the plaintiff. The damages for the underlying tort, that is, the injury, will be things like hospital and medical expenses, pain and suffering, and property damages, all of which they can recover through financial compensation. In the wrongful death case, less tangible damages, other than funeral expenses, such as the family’s loss of future financial support and consortium with the victim, are the injuries on which the case will focus, and
  • The injury resulted in financial damages to the plaintiff, for which the defendant may pay financial compensation. Again, the damages for the wrongful death itself will include funeral expenses and other out-of-pocket losses or income losses in the future.

Elements of Medical Malpractice Claim

As is usual with torts, states set the rules governing medical malpractice claims, therefore, differ from state to state.

The basic rules for a medical malpractice claim, however, include:

  • The duty to care for those with whom the doctor has a doctor-patient relationship, arising as soon as each party establishes the relationship. The standard that is usually applied is what care a reasonably competent and skilled medical professional with a similar background and in the same medical community would have provided under the wrongful death circumstances.
  • The establishment of the applicable medical standard of care, usually through expert testimony, is required. Many states have passed laws requiring that the courts establish this standard with expert medical testimony. If the defendant practiced in a recognizable specialty, the defendant’s attorneys would ask to see the evidence of that specialty and the expert’s then-current standard of care testimony.
  • Breach of the applicable medical standard of care, also with expert testimony. Breach requires proving that the defendant’s medical professional failed to meet the standard of care described by the expert.
  • The plaintiff must allege and prove that the breach harmed the plaintiff. In medical malpractice, this will be the actual or proximate cause of the injury; in wrongful death, the actual or proximate cause of death. Generally, the plaintiff must show uninterrupted causation.
  • The plaintiff must show the injury caused by the death to have resulted in compensable damages. A court will award damages for which the survivors can be made whole through the payment of compensation.

What Damages Can You Collect

There are many kinds of damages that plaintiffs can recover in a wrongful death case.

They include:

  • Loss of consortium—technically means loss of a relationship, but usually used to refer to the spousal relationship
  • Loss of love and companionship
  • Loss of care, guidance, and nurture that decedent had previously supplied
  • Pre-death pain and suffering of the decedent, that is, the survival claim
  • Medical and hospital treatments resulting from the injury and incurred before the death
  • Funeral and burial/cremation costs
  • Loss of decedent’s anticipated income
  • Loss of inheritance that might have come through decedent and will now bypass the estate
  • Value of decedent’s lost services

When Do You Have to File

All civil causes of action are subject to statutes of limitation. A statute of limitations sets out the period during which a lawsuit must be filed or be forever barred. Some exceptions may extend or “toll” the period of the statute, but ordinarily, if a party files no suit before the expiration of the statute, no suit may ever be filed on that matter.

State law sets the statute of limitations for wrongful death and varies. It usually begins running when the party filing the suit discovers or reasonably should have discovered the cause of death. In some states, in contrast, it begins at the moment of death unless that would have prevented the cause of action before the plaintiff could reasonably have discovered it. However, the statutory period is almost always shorter than the statute of limitations for a personal injury or other tort cause of action, commonly only two to three years.

You should note that if the decedent had not had a viable tort cause of action against the defendant, the survivors probably would not be able to sue for wrongful death. In other words, if the deceased party could not have proven that the injury caused the death, there would be no derivative cause of action for wrongful death available to the survivors.

Grounds for Tolling the Statute

Several circumstances will extend, waive, or toll the statute again as set out in each state’s wrongful death laws. Some of these include:

  • Product Liability Cases - in some states, the statute begins running at the time of death with no provision for discovery delaying the case. This limitation is particularly common in cases where the product has long been off the market.
  • Discovery Rule - as applied in some states, this can significantly extend the filing period.
  • Minor Children - generally, the statute is extended until the minor child turns a specific age, usually 18.

On the other hand, granting a waiver is extremely rare.

Contact a Wrongful Death Attorney Today

As you have seen, wrongful death actions are complex. Further, they must be filed very quickly, at a time in your life when litigation is not your highest priority. However, move quickly and correctly to preserve your rights and those of others who depended on the deceased party.

Most wrongful death attorneys will offer a free initial consultation and case evaluation. Take advantage of this offer and work with a carefully chosen, experienced wrongful death attorney. Lacking your emotional—and possibly physical—holdovers from the death, a skilled wrongful death attorney can begin to build your case and prepare for the negotiation or litigation that will be necessary to obtain the best possible result for the decedent’s survivors.

Why Hire an Experienced
Attorney Like Ivan Diamond

If you want to recover the maximum compensation that you deserve, you need an experienced personal injury attorney like Ivan Diamond on your side.

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If you want to recover the maximum compensation that you deserve, you need an experienced personal injury attorney like Ivan Diamond on your side.

Someone who understands the tactics insurance companies and opposing lawyers sometimes use to avoid liability and paying settlements.

Insurance adjusters, in particular, know that you’re going through a difficult time. They may try to take advantage by offering you a lowball settlement, hoping you’ll jump at quick money before you talk to a lawyer. Don’t help them out. Instead, let an experienced attorney handle the negotiations.

The same goes for preparing your claim. A skilled, knowledgeable litigator like me understands what facts and arguments are most important to prove your claim to a judge and jury, if it comes to taking a case to trial. I know how to guide my clients through depositions, discovery, and efforts by opposing lawyers to trap them into saying things that might undermine their case.

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