What is wrongful death?
Wrongful death is the death of a person caused by the negligence or other wrongful act, neglect or omission to act of another, including a person, company or other entity. Wrongful death is the occasional result of elder abuse or neglect, or the negligence of someone in the health care profession.
For a successful legal case to be brought for wrongful death, there must be one or more surviving family members who have suffered financial injury because of the wrongful death. And there must also be a personal representative for the estate appointed in a prior probate action.
Who is injured by a wrongful death and who sues?
In wrongful death cases the person most injured is dead and canít sue. The people who are now seeking the recovery of damages are the others injured by the wrongful death, normally the decedentís spouse and/or surviving children. In some cases the decedentís other family members, such as parents or siblings, may claim injury. But any lawsuit that is brought for wrongful death will have to be brought, not by the family members, but by the personal representative of the decedentís estate on behalf of the estate. Any recovery will then be distributed to the family members as appropriate.
How might a wrongful death occur?
There are many ways in which a personís death might qualify as a legally actionable wrongful death. Often, a wrongful death occurs as result of one of the following:
- Some form of medical malpractice
- A vehicle accident: automobile, airplane, train, water craft
- An improperly supervised activity
- Exposure to a hazardous condition or substance on the job
What are the damages that may be claimed for a wrongful death?
The damages that may be claimed as the result of a wrongful death are the fair and just compensation for financial loss caused by the death of the decedent. Typically these will be for loss of support, loss of services, loss of possible inheritance; medical and funeral expenses paid by the family; and loss of consortium, society, affection, and companionship. As a part of the wrongful death action, the personal representative can also sue for the personal injury to the decedent before death by showing that the decedent had a consciousness of pain and suffering and an awareness of death.
What if the wrongful death occurred to an elderly person?
In order for an action for wrongful death to by found, the survivors (called the ďdistributesĒ) will have to have experienced an actual pecuniary loss. To determine the existence and extent of such a loss, a number of factors will be examined, including the following:
The decedentís age and condition at the time of death or the injury that caused it
The life-expectancy and earning capacity of the decedent
The circumstances of the distributes
When a wrongful death happens to an adult who is a wage-earner with dependent children, the estate can recover for the loss of the decedentís future wages and the loss of his or her parental guidance. Even if the decedent was unemployed at the time of death, recovery can be had for lost earnings based on his or her last earnings.
If the wrongful death occurs to an elderly person, very often the existence of actual financial loss Ė and therefore, the potential for the award of damages Ė is limited. Commonly, elderly people will have small earning potential and children who are grown, with no need of the elder parentís nurturing or support. Where there is the suspicion that an elderly loved one is the subject of a wrongful death, it is important to consult with a qualified attorney who can determine if an award of damages might realistically be found.
What do you do if you suspect wrongful death of a loved one?
If you suspect that a loved one died as the result of a wrongful death, it is imperative to contact a qualified attorney as soon as possible. This is a complex area of law and only a specialist in personal injury and wrongful death can give you a proper assessment of the situation. Moreover, there are strict time limits in which a case for wrongful death must be brought, and if the case is filed too late, the opportunity may be lost forever, even though the case otherwise has merit.
In order to bring a suit for wrongful death, a personal representative for the decedentís estate will first have to be appointed by the court. That will take place as part of a separate probate action brought by an attorney who specializes in wills and trusts. Then the personal representative will work with the personal injury attorney to bring the action for wrongful death. (Please call (800) 475-6068 if you would like more information about Probate attorneys specializing in Wills and Estate Planning.)
What are the time deadlines for bringing a wrongful death lawsuit?
Laws dealing with time limits during which lawsuits may be brought are called statutes of limitations. They state that if a cause of action is not brought within a certain expressed time limit, they may not ever be brought even if they have merit. This is because over time evidence is lost, memories fade and testimony becomes unreliable. Time limits to bring lawsuits vary for different types of lawsuits. It is a very precise and unforgiving area of the law.
Under California law, an action for wrongful death (or personal injury) must be brought within two years. But it is not always that simple. In some cases the time starts to run at the time of death, and in other cases at the time of the injury that caused the death. And if the death was caused by a governmental entity, such as a city, county or state agency, the rules are different yet. In these cases, first a written claim must be filed with the city or county clerk within six months of the injury or death. Then after the claim is rejected, there is limited time during which a lawsuit may be filed.
The law relating to statutes of limitations is specialized. Delay in seeking professional advice can only work to the disadvantage of someone who feels he or she has been damaged, especially in the area of law relating to wrongful death. If you suspect that a loved one has been the victim of a wrongful death, contact an attorney who specializes in that area of law as soon as possible. For more information, or to schedule a consultation with a qualified wrongful death attorney call toll free (800) 475-6068.
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