The death of a loved one is never easy, and it is even harder to handle when that death was due to the negligence or intentional act of someone else.
Healing from your loss requires you to be able to go through the stages of the grief process, which is hard to do when you are stuck in the stage of anger and denial. Yet this is a common occurrence for those who are dealing with the tragic effects of a loved one lost to a wrongful death.
Sometimes the only way to make it through those stages is to get closure by ensuring that the guilty party responsible for the death of your loved one is held accountable.
That’s when you turn to a knowledgeable attorney to help you present your case, close that chapter, and move on to start the healing process cleanly.
Your attorney can help you to file a wrongful death claim against the negligent person or persons whose actions resulted in your loss. If you are a representative of the estate, you can file a lawsuit on behalf of the surviving family members and those affected by the death.
When Can You File a Wrongful Death Claim?
A wrongful death claim is a legal act that is brought against someone who has negligently or intentionally caused someone else’s death. It Is used when the victim is killed in a personal injury action that was the result of negligence or an intentionally harmful act.
Wrongful death lawsuits are often seen in the following types of situations:
- In the event of car accidents that resulted in fatalities due to negligence. This can be the effect of drunk driving, texting, or any kind of distracted driving. It can also be the consequence of poor maintenance on a vehicle or faulty parts.
- Medical malpractice, when a doctor was careless in treating the victim, failed to diagnose a condition, or was negligent in the treatment of a condition that resulted in the death of the patient.
- Intentional acts resulting in death, such as a robbery in which a person was shot and killed or a fight that led to the injuries that ultimately caused the victim’s death.
There are many other types of incidents in which injuries result in deaths, changing the claim from a personal injury lawsuit to that of a wrongful death one. However, wrongful deaths that are the result of a work-related injury fall under the category of worker’s compensation accidents and are handled differently.
What is Required to File a Wrongful Death Lawsuit?
When you are ready to initiate a wrongful death claim, there are a few things that you need to know before you begin. To get started, these types of claims are generally filed by a representative of the estate of the deceased. This is done on behalf of those who had a close relationship with the victim, but those who are entitled to a legal claim differs in each state.
Some aspects of this requirement do not change no matter what state you are in, however. For example, parents of minor children who were killed due to negligence or intentional actions can file wrongful death claims. Minors are entitled to have a representative file on their behalf for compensation when their parents are the victims. Spouses are always able to begin an action on behalf of their deceased spouse.
The variability begins to come into play when it comes to expanded circumstances. These are situations in which adult children are suing over the wrongful death of their parents, parents of adult children are attempting to sue for their child’s wrongful death, and other, non-nuclear family members such as cousins or grandparents wish to file a lawsuit over the wrongful death of their family.
In these types of circumstances in which the relations are not immediate, you must be able to prove why you should be able to collect the wrongful death damages that may be allotted.
Another situation in which the ability to file a wrongful death claim is determined by the state you are filing in is that of a life partner. If your life partner was the victim of negligence or an intentional act that resulted in their death, you may be able to bring a claim against the responsible party if you can prove that you were financially dependent on the decedent.
What You Need to Prove: The Burden of Proof
If you are determined to be able to legally file a lawsuit for your loved one, you as the plaintiff now have the burden of proof in the case. This means that you have to prove that the defendant, or the person you are filing a claim against, was, indeed, responsible for the death of the victim.
Negligence, for example, has its own set of rules. You would have to prove that the defendant owed the victim what is called a “duty of care,” or basically a duty to take reasonable measures to attend to another person’s safety.
Then you would need to prove that the defendant was in breach of this duty, either by not paying careful attention to the road in the case of an accident, or neglecting a reasonable treatment in a medical malpractice case, for instance.
Finally, you have to show that the victim’s death was a direct result of this breach of duty, and that the death of the victim caused damages to you as the plaintiff. This is called “proving causation.” To do this, you have to prove that the actions that are in question led to the fatality.
In some situations, this may end up becoming quite involved. To prove causality, your attorney may need to call in expert witnesses to testify, analyze crime scene photos and police reports, and do thorough investigating.
Finally, you will have to prove that the deceased suffered damages. This will generally fall in line with the previous evidence that you have presented. If you have successfully shown the timeline of duty of care, beach of duty, and causation, in most cases damages will be evident, but in circumstances where it is not so cut and dried, this could be difficult to prove.
What Kind of Damages Can You Be Compensated For in a Wrongful Death Claim?
Compensation of damages in a wrongful death lawsuit are divided into categories of loss. These categories take into account different levels of the survivor’s suffering. They include:
- The victim’s pain and suffering prior to their death,
- Medical costs that were incurred due to the injury before the victim’s death,
- Costs due to funeral and burial needs,
- Loss of income and inheritance of the deceased,
- Value of tangible services that the victim would have been projected to have provided, and
- Loss of care, guidance, companionship, and nurturing to the survived loved ones.
Keep in mind that there is no set time frame on how quickly a wrongful death suit may be settled. Some may take just a few months to come to a negotiation and settlement, while others can take anywhere between one to four years before a resolution is reached.
Some cases will go to trial and others will end in a settlement through careful negotiation. Both avenues will take time and patience. During this time, you must be in full cooperation and communication with your attorney.
While there is no specific time in which your case will settle, there is a time limit on how long you can wait until you file a wrongful death claim. Each state has a different “statute of limitations,” or time limit in which you can initiate a lawsuit against someone accusing them of causing a wrongful death.
Most states go by the general rule that you must file a lawsuit within two years of the action that caused the victim’s death – not the death itself. If you are debating on whether or not to file a claim, keep the statute of limitations firmly in your mind while you deliberate.
When You Are Ready to File a Claim, Get Expert Help
The days and months following the loss of a loved one should be carefully tread by you and those who have been affected by the victim’s passing. You are grieving and going through pain that no one can take away from you. Dealing with the legalities of a wrongful death lawsuit should not be an extra burden.
During this sensitive time, talk to an attorney who is an expert in handling these types of cases and can ease your stress. We at Hershey Law know that you are in pain and we want to help you to get the compensation you deserve so you can move on and begin the full healing process.
Call or click here for a free consultation to see how we can assist you in getting the guidance and legal advice that you need to bring justice to your loved one.