No one wants to imagine something unthinkable happening to a loved one. Death is not something most people want to think or talk about. But when a death was caused by negligence or even caused intentionally, it is a whole new level of emotional and financial pain for the surviving family members.
Before wrongful death and survivor statutes were developed in the 1800s, only the injured person could bring a legal claim (or tort claim) to court. If the victim died as a result of an intentional wrong or negligence, there was nothing the victim’s heirs could do legally to collect damages.
Today, the family survivors (or the estate) of a victim who died because of another person’s negligence or intentional wrong actions can file a wrongful death claim.
Types of wrongful death claims
- By a careless doctor or other licensed medical professional
- In a nursing home
- In a school or daycare
- In a worker’s compensation situation
- With a property owner who has premises liability
- With a careless driver
- Malicious/criminal actions
- Assault, battery, etc…
- Intentionally caused car wreck
- Malicious/criminal actions
Proving a wrongful death claim
The plaintiff (usually through the deceased person’s estate) must prove several things for the defendant to be held liable in a wrongful death action:
The defendant must have owed the victim a duty of “due care.” This means that it is a duty to keep other people safe or to avoid causing harm.
If the plaintiff alleges that the defendant was guilty of malpractice in the treatment of the decedent, the plaintiff could argue that the defendant (the doctor) owed the decedent a duty of due care to practice medicine according to the current standard of care in medical practice.
The judge decides if the defendant owed a duty of care to the plaintiff and numerous factors contribute to the final decision.
Breach of duty
If the judge determines that the defendant did owe a duty of care to the decedent, then the plaintiff must prove that the breach of duty actually caused the decedent’s death.
The plaintiff has to convince the jury that their perspective on the facts is over 50% likely to be true.
The plaintiff must show that the breach of duty caused the decedent’s death. If other factors and other people may have contributed to the decedent’s death, all of that has to be sorted out to determine what ultimately caused the harm.
The plaintiff must also prove that the decedent suffered damages. Usually, in a wrongful death case, the damages are obvious. But in a personal injury case, if breach of duty and causation can be proved, there still may not be a winning case if the plaintiff can’t prove the extent or existence of the alleged harm.
Generally, a plaintiff will need a good personal injury lawyer to help them work through their case to be sure they provide the strongest case possible. A personal injury attorney can generally help the plaintiff recover more damages for medical bills, medical debt, lost wages, etc… than someone could receive without proper legal representation.
Damages Covered in a Wrongful Death Case
There are two kinds of damages in a wrongful death case.
- Damages that occur for the decedent from the moment of the act that lead to death until the time of death. These could include the decedent’s:
- Medical expenses
- Emotional and physical pain and suffering
- Lost wages
- Funeral expenses
- Damages the family experiences as a result of their loved one’s death.
- Financial losses the family will suffer as a result of the decedent’s early death from the time of death until the expected time of retirement.
- Some states allow for “loss of consortium” claims for the pain of losing the decedent’s love, guidance, and/or companionship.
Who can receive damages from a wrongful death lawsuit?
Generally, wrongful death damages go to:
- The surviving spouse
- Dependent children
- Parents of a minor child
Sometimes courts award punitive damages to surviving family members or heirs, as well. These damages or typically awarded in cases where a defendant’s extremely reckless or purposeful wrong behavior led to the decedent’s death. Punitive damages are meant as a punishment for the defendant in hopes that the person will not take a similar course of action again.
What should a family do if a loved one suffers a wrongful death?
We wish no family ever had to experience this kind of loss and pain. But families who are dealing with a devastating wrongful death case need as much support as possible.
Whether your loved one was injured on the job or because of another person’s negligence or intentional actions, it’s wise to speak with a trusted personal injury attorney.
Some other helpful avenues include:
- Make some important calls to the decedent’s
- Life insurance company
- Auto insurance company (if it was a vehicular accident)
- Police department if a police report is needed
- Health insurance company
- Liability insurance with personal injury coverage (pip insurance) if relevant
- Let your personal injury lawyer speak with the defendant’s insurance company.
- Collect all of the decedent’s financial papers to prepare for the legal case as well as that year’s tax returns.
There is much to do after someone in your family dies. There are emotional wounds and grief to process. There are financial hardships. You’ll have many calls to make to tie up all the loose ends.
But be sure to reach out for legal help quickly if you think there is a chance that your loved one’s death was the result of someone’s negligence or intentional wrong actions. Please don’t try to handle this on your own. You deserve to have someone in your corner looking out for your family’s best interests.
Looking for a personal injury lawyer in South Carolina to help your family?
If you are facing the nightmare of a wrongful death in your family, we would be glad to meet with you for a free consultation to see if we can help.
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At Burriss and Ridgeway, we have personal injury law offices in Columbia, Lexington, and Orangeburg, SC. Ask about virtual consultations, as well.