Understanding your state’s laws for filing wrongful death claims is the critical first step to knowing whether you qualify. Many states require that a legally appointed executor of the victim’s estate file a wrongful death lawsuit instead of a family member. Medical malpractice cases might require a different statute of limitations, and these statutes can vary from state to state.
Just dying is insufficient for wrongful death cases. You must prove that the defendant had a duty of care and breached that duty. You must prove that the victim’s death deprived you of companionship and consortium and caused other damages, like financial hardships. Pain and suffering damages can also be awarded to family members who suffer the loss of the victim.
The Five Elements You Must Prove
You must establish that the defendant had a duty of care and breached that duty, which resulted in the victim dying. You and your attorney must also prove cause, proximate cause, and harm. These elements simply mean that your lawyer must prove that some action or inaction of the defendant took place and that action resulted in an injury that caused death.
Proximate cause links to foreseeability. Could the defendant foresee that their actions could cause your loved one harm and death? For example, if your loved one was killed in a car accident because the defendant ran a red light, the case is simple enough for an experienced attorney. However, things can get complicated in a premises liability case or a case involving medical errors.
The final element, harm, is based on the harm that your loved one’s death caused you as the plaintiff. Wrongful death cases often represent the estate, and as such, the damages can be calculated for all the plaintiffs. According to information offered by legal experts and scholars, there have been many claims of pain and suffering among multiple wrongful death victims. However, there are no hard-and-fast rules about how judges balance multiple claims.
However, the plaintiffs must qualify under state laws about wrongful death cases. That might mean appointing an executor or representative to file the claim and apportion the award based on state inheritance laws. One thing to consider - whether using an executor or not, one thing to consider is that any debts of the victim’s estate must be settled before dividing up any remaining award.
Setting A Value On A Human Life
Setting a dollar value on human life is difficult, and judges use various formulas in different states to calculate intangible things like pain and suffering. According to Cornell University Law School, the complex cases of wrongful death created by the 9/11 terrorist attacks played a significant role in judicial thinking. Many judges use both human capital and non-economic losses calculated based on summaries of earning capacity. Other judges use willingness-to-pay and the value of an average statistical life.
Proving Medical Negligence
Proving medical malpractice and negligence isn’t as simple as proving accidental injuries suffered at work or car accident injuries. You might require expert medical testimony and an experienced medical investigator to uncover the truth. That’s why hiring an experienced legal team is highly recommended.
Children Who Die Before Their Parents
Most courts grant greater leniency for damage awards calculated for children’s wrongful death cases. According to a post at bu.edu, the tragedy of outliving your children produces mental anguish that many people never experience. Judges have written legal opinions that the death of a child can't be compared to the death of an older adult.
State Laws Prevail
You can get help from a wrongful death attorney. Fortunately, his team of attorneys is trained and up-to-date on laws across the United States, and an experienced attorney can offer invaluable advice. That advice might include carefully assessing the victim’s financial profile before filing a wrongful death lawsuit. The debts might not leave much money, which has to be subdivided among multiple recipients, but you can find the justice you seek.
Victory On Principle Or Cash Award?
Only you can decide whether to pursue a wrongful death lawsuit for a victory based on principles. These cases often lead to exaggerated financial expectations. Property damages are paid to the estate, and non-economic damages might leave little unless you’re the heir to the estate. Nevertheless, wrongful death claims and lawsuits lead to satisfactory compensation for families left without fathers, sons, husbands, etc.
