Wrongful Death Claim: Lawsuits & Attorneys

What exactly is a wrongful death case?

These are civil actions brought by the surviving family members of a decedent who passed away prematurely because of the negligent actions of another. These careless actions are the underpinnings of the case. Additionally, these actions are meant to compensate the living members of the family, not the decedent. Courts do take into account the pain and suffering of the decedent, but they are part of the overall picture.

There are actually two types of cases in this area: wrongful death and survival actions.

Wrongful death actions are meant to compensate the survivors for damages such as the loss of emotional, financial and other support they had been contributing to the household.

Survival actions, on the other hand, pay for damages suffered specifically by the victim as a result of the defendant’s actions. This includes pain and suffering, medical bills and other damages between the time of injury and death.

These damages are paid to the estate, which is then funneled to the beneficiaries (i.e., the survivors) anyway.

Either way, these claims are usually a two-step process.

Before a civil claim can be filed, the family appoints a personal representative in the probate court to represent the decedent’s estate. That individual will then bring a civil suit on behalf of the family.

Only certain people can bring claims:

• Spouses
• Partners
• Children
• Siblings
• Those who suffer financially

The personal representative “is” the decedent and acts in the best interests of the estate. Once they are authorized, they can bring a wrongful death case. Wrongful death cases can be brought for all sorts of cases: motor vehicle cases, personal injury, medical malpractice, drunk driving accidents and even murder.

The interesting aspect of a wrongful death case is that as a civil case, the burden of proof is “preponderance of the evidence.” This means that the plaintiff has to prove that, more likely than not, the defendant was negligent in his actions. This is far less than the burden of proof in criminal court, which is “beyond a reasonable doubt.” This works heavily in the plaintiff’s favor and can mean a win in civil court – and a loss in criminal court for the same case with the same facts.

What type of damages can a representative try to recover under wrongful death?

There are three types of damages that a personal representative can try to recover:

• Economic: These are generally the financial contributions the decedent would have made to the survivors had he or she lived. They can include:
  
  

       a. The loss of the decedent’s expected earnings;

       b. The loss of benefits (pension plans, medical coverage, etc.);

       c. Loss of inheritance; and

       d. Medical and funeral expenses.
  
  

• Non-economic: These are intangible damages that are difficult to put a number on, such as:
  
  

       a. Loss of care, guidance, advice, and nurturing from the decedent;

       b. Loss of consortium from a spouse;

       c. Loss of love and companionship; and

       d. Mental anguish, pain and suffering.
  
  

• Punitive: These damages are meant to punish the defendant. These are not available in some states or against some governmental agencies.
  
  There are various other methods used to calculate how to pay victims in wrongful death cases.
  
  Courts sometime look at how the victim would have provided for surviving family members based upon income at the time and actuarial lifetime expectancy; this is called “valuation by human capital” or the “pecuniary loss rule.”