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It is never easy to learn that a loved one has passed away. Even if a father, sibling, or grandparent was in poor health, their loss is likely to have a significant impact on those closest to them. If a death was caused by a doctor's negligence or the negligence of a related party, it may be possible to file a wrongful death lawsuit. In some cases, it may be possible to obtain a wrongful death settlement to compensate the family for their loss.
Those who are thinking about pursing a wrongful death settlement should understand that they may have have a limited amount of time to do so. Many states have what is known as a statute of limitations in a wrongful death case. In California, a family wishing to bring such a case has two years from the time of the death to do so. Illinois and Texas have similar statutes of limitation on wrongful death cases while New York allows up to three years to file a lawsuit.
It is not uncommon for an attorney to file a lawsuit simply to preserve a family's legal rights. In addition, filing a lawsuit may provide an incentive for the parties that may be liable for damages to negotiate in good faith. This is because it may be better to settle a case and keep the details private as opposed to pursuing an expensive trial that may expose misdeeds committed by a person or entity.
If a case is not brought in a timely manner, it may not be allowed to proceed. However, it may still be possible to negotiate a settlement if the other parties involved are willing to come to an agreement. In some cases, statutes of limitations can be tolled. In a Georgia wrongful death case, for example, this may happen because the family was unaware that a negligent act caused the death to occur.
Several facts must be established for a wrongful death claim to be successful. First, it may be necessary for the party filing the lawsuit to show that it has standing in the case. As a general rule, children, spouses, and domestic partners have standing to file such a suit. In states such as Wisconsin, cases can only be brought by a personal representative of the estate.
It must generally be proven that a person died as a direct result of the decisions made by another person or entity. For instance, the family of someone who died during surgery must show that the death was caused by actions taken during the surgery. It may also be possible to show that hospital policies led to a person dying.
It must also be shown that the actions taken were negligent in nature. For example, if a surgeon failed to remove an infected organ, the surgeon may be negligent if the infection continued to spread and caused the patient to die. Negligence may also occur if objects are left in a patient. Generally speaking, negligence occurs when actions are taken that a person knows or should have known could lead to harm.
There must be financial loss to the family resulting from an individual's death. If there is no financial loss, the law says that negligence did not occur. Therefore, there would be no legal basis to file a wrongful death suit. Monetary losses could include loss of income, loss of health benefits through the deceased person's employer, or any other actual or indirect losses experienced.
In a wrongful death case, there may be a variety of damages that a family may be able to pursue on behalf of their deceased relative. Generally, the family can make a claim for lost wages or lost future earnings that they would have had if their loved one had not died. Lost wages are typically calculated by looking at the deceased person's hourly wage or salary over a predetermined period of time. Lost future earnings are calculated using a formula that takes into account that person's current salary and future job prospects.
Younger people, those who work in fields that have higher salaries, and those who may have an advanced degree may receive more than others. However, the exact amount of any award will be determined on the facts of a given case. Awards may also be based on net income, which is income minus any expenses a person would need to account for.
If punitive damages are awarded, the amount may be based more on psychology as opposed to the facts in the case. As a general rule, such damages are designed to make others think twice about acting in a similar manner in the future. State or federal law may place limits on the amount of damages or the types of damages that can be pursued.
For instance, New York law only allows the family to seek reimbursement for the cost of medical bills and funeral expenses incurred. Children may seek compensation for the loss of parental guidance or support that may occur if a parent dies because of a negligent act.
Those who have lost a loved one may be dealing with a variety of emotions such as grief and anger. Talking to an attorney may make it possible to help them learn more about their rights and how to hold those who may have been responsible for the death accountable for their actions.
This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified wrongful death lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact a local wrongful death attorney to discuss your specific legal situation.