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Originally Posted On: https://wmpc-lawyers.com/the-legal-process-of-filing-a-wrongful-death-claim/

 

More than 2.8 million people die every year in the United States. Losing a loved one can be incredibly painful no matter how it happens. However, nothing can prepare you for the grief of losing a loved one unexpectedly.

If someone is responsible for the death of your loved one, then you could file a wrongful death claim against them. This won’t undo the emotional damage of losing them, but it can provide valuable financial compensation for your loss. It can also help to give grieving families a sense of justice about losing a loved one.

So what does a wrongful death lawsuit involve? Read on to find out everything you need to know about when you can make a claim and what the process involves.

What is Wrongful Death?

Wrongful deaths are deaths someone is responsible for. They are different from someone dying from old age or illness.

In a wrongful death claim, there will be a liable party. This party may have caused injuries that resulted in the death of your loved one. Or they may have failed to fulfill their duty of care.

Legally, this is often defined by looking at whether or not the death would have occurred without the liable party’s involvement.

Wrongful deaths can occur in a range of circumstances. Understanding these will help you figure out whether or not you have a claim to make. With that in mind, let’s take a closer look at different types of wrongful death lawsuits.

Medical Malpractice Wrongful Deaths

More than 250,000 people in America die yearly due to medical errors. In fact, this is the third-leading cause of death in the country.

Medical malpractice deaths can occur if:

• A doctor doesn’t diagnose a condition correctly (or fails to run the proper diagnostic tests)
• Medical professionals fail to provide the correct level of care to a patient
• A patient is prescribed medication that they are allergic to
• A surgeon is negligent and a patient dies of surgical complications

When this happens, you can bring a wrongful death lawsuit against a medical professional or the hospital itself. All hospitals in the US have malpractice insurance coverage. They will use this to pay out wrongful death claims.

Auto Accident Deaths

Every year, more than 35,000 fatal auto accidents occur on roads across America. However, losing a loved one in an auto accident does not automatically mean that you have a wrongful death claim on your hands.

You can make a claim if the driver responsible was being negligent while on the road. For example, they may have been exceeding the speed limit or driving under the influence of alcohol. In that case, you can bring a lawsuit against them, and they will have to use their liability insurance to cover the payout.

If a driver causes a fatal collision while working, then their employer may be liable instead. Lawyers for wrongful death claims will be able to figure out who the liable party is in your case.

Drivers aren’t the only people who can be responsible for an auto accident. For example, poor road signage or unsafe conditions can cause a fatal collision. In that case, you may be able to make a claim against the highway maintenance company.

Unintentional Injury Deaths

Unintentional injuries cause more than 200,000 deaths in the US each year. These may also be described as accidental deaths.

However, someone can still be held responsible for your loved one’s accidental death. Unintentional injuries can include:

• Suffocation
• Poisoning
• Burns
• Falls
• Injuries sustained during sports or recreational activities

Accidental injuries occur without intent (making them different from intentional injuries). However, they can still occur as a result of negligent behavior. When this happens you may have a wrongful death lawsuit on your hands.

Product Liability Deaths

Product liability deaths are rarer than other types of wrongful deaths but it is important to be aware of them. These occur when a product causes the death of your loved one.

For example, they may have had a severe allergic reaction to a food or beauty product. Or a piece of homeware equipment may not have come with the appropriate safety instructions.

To have a wrongful death claim on your hands, you need to prove that the company:

• Failed to provide a comprehensive list of ingredients for the product
• Failed to provide safety warnings and instructions
• Failed to carry out appropriate testing of a product before they put it on the market
• Marketed the product irresponsibly or in a way that contributed to the death of your loved one

This will show that the company responsible for the product behaved negligently and failed to flag when it was unsafe to use a product.

Who Can File a Wrongful Death Lawsuit?

In America, there are certain rules about who can file a wrongful death lawsuit. In all states, the following people can file a claim:

• Spouses (or long-term romantic partners) of the deceased
• Parents of the deceased
• Children of the deceased

In some states, adult siblings and extended relatives, such as grandparents, can also file wrongful death lawsuits. So it is worth speaking to a lawyer about whether or not you can make a claim.

Generally, the more distant your familial relationship is, the more difficult it is to file a claim.

Contact a Wrongful Death Lawyer

If you believe that someone is liable for the death of your loved one, then it is important to seek help from a wrongful death lawyer.

These cases can be incredibly complicated and require a lot of supporting evidence. Getting support and advice from an experienced lawyer will give your case the best possible chance of success.

A wrongful death lawyer will look into the details of your case. They can then tell you whether or not they think you have a claim to make.

If they do think you can make a claim, they will support you throughout the process. They will:

• Identify who is liable for your loved one’s death
• Help you gather evidence to support your case
• Represent you when meeting or communicating with the defendant
• Ensure that you meet any necessary deadlines

This means that you will have invaluable support during this difficult time. So you can focus on grieving and supporting the people around you.

The Statute of Limitations dictates that you have two years from the date of your loved one’s death to file a lawsuit. If you think that you may have a case to make, it is important to contact a lawyer sooner rather than later.

Collect Your Supporting Documentation

You will need to provide a lot of evidence to support your case. Your lawyer can help you gather testimony and further evidence.

However, it helps if you can provide your loved one’s death certificate from the Department of Health. If you do not have a copy of this (or have lost yours) you can contact the vital records office to get another.

In order to claim damages in your case you will also need to provide evidence of your financial losses. So take some time to collect all of your medical bills and funeral expenses. You and your lawyer can use these to calculate the damages that you are owed.

Calculate the Damages You Are Owed

A successful wrongful death lawsuit will end with the liable party paying your a settlement. This should cover damages caused by the death of your loved one.

Putting together your claim doesn’t just involve proving that the liable party is responsible for your loved one’s death. You also need to calculate how much you are seeking in damages. This will give you a settlement figure to send to the defendant.

When it comes to calculating damages, there are two key areas you need to look at: economic damages and emotional damages.

Economic Damages

Economic damages relate to the financial impact of your loved one’s death. To calculate these you can look at:

• Their medical bills
• Their funeral bills
• Loss of earnings from the date of their injury to the date of their death (if they were unable to work)
• Loss of net income (the income that they would have received and saved if they had not died)
• Your loss of earnings (if, for example, you have to take time off work to care for your loved one’s dependents)
• The cost of grief counseling
• The cost of additional household services used to cover tasks that your loved one would have taken care of

Recovering these costs will not undo the pain of your loved one’s death. However, it can help you recover financially from your loss. This can provide a lot of financial stability at a time when you need it most.

Emotional Damages

The loss of a loved one doesn’t just throw up financial challenges. Their death can have a profound emotional impact on your life and the lives of the people around you. This is why you can also claim emotional damages in a wrongful death lawsuit.

These damages can include:

• Loss of companionship
• Emotional distress caused by the loss of a loved one (including depression, anxiety, and post-traumatic stress disorder)
• Loss of enjoyment or quality of life
• Grief

Your lawyer may also talk to you about “inconvenience” damages as part of your emotional damages. This does not mean that the death of your loved one was inconvenient.

It relates to how the circumstances of wrongful death can impact your ability to engage with certain areas of life. For example, you may feel more anxious getting into a car or find it difficult to trust medical professionals.

Inconvenience can also relate to the financial impact of your loved one’s death. For example, if you are stressed about money, you may stop going to social events or traveling for work.

It can be more difficult to prove the emotional damages caused by your loss. After all, these aren’t quantifiable in the same way that your finances are.

Most lawyers will start by collecting testimony from people close to you and from your therapist if you use one. They may also present time taken off work or canceled social engagements as evidence of your emotional distress.

Communicate With the Defendant

Once you have reached a settlement figure, your lawyer will file your wrongful death lawsuit on your behalf. The defendant will then have time to review the claim and reach out to you to discuss it.

In some cases, the defendant will accept your settlement and supporting evidence. This means that you can settle the claim out of court. Once a claim has been settled you cannot seek further damages for the case.

If your claim involves an insurance company or a large business, things can get a little more complicated. Often, these organizations will try to negotiate your claim down.

You then have the choice to accept a lower settlement or take your case to trial.

Taking a Wrongful Death Claim to Court

The majority of wrongful death claims are settled outside of court. However, if you and the defendant cannot reach an agreement, your case will appear in front of a civil judge.

During your trial, your lawyer will present the case and supporting evidence. They will also outline the settlement you are seeking and the damages that this covers.

The defendant (or their lawyers) will then have the opportunity to make a counter-argument. They may dispute the wrongful death claim. Or they may try to negotiate the settlement down.

The judge will then review all of the evidence and arguments. They will have the final say on the outcome of your case and on the damages owed.

Get Help With Your Wrongful Death Claim Today

As you can see, a wrongful death lawsuit can help you get compensation for the loss of a loved one.

This can provide valuable financial stability while you are grieving and help pay for support after their death. It can also give families a sense of justice about the death of a loved one, which can be important for the grieving process.

If you think you may have a wrongful death claim on your hands, get in touch with Wells and McElwee for a free evaluation today. We’re happy to help.