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Wrongful Death

As far as personal injuries go, the worst injury one can suffer as a result of someone else's intentional or negligent behavior is death. While the injured party can't file a wrongful death lawsuit, his or her surviving family members can file a suit on behalf of the deceased person, also referred to as the decedent. Although a successful wrongful death suit can't bring the victim back, it can allow the victim's loved ones to receive compensation for their loss. Damages in a wrongful death suit can include loss of support, any medical and funeral expenses, and the loss of consortium. FindLaw's Wrongful Death section provides information about wrongful death as well as the process for filing a wrongful death suit. In this section, you can also find articles explaining patient-doctor privilege, the discovery rule, and wrongful death cases involving children and the elderly.

Wrongful Death: The Basics

A wrongful death claim can arise from many different circumstances. Some examples of common circumstances are medical malpractice, car accidents, or criminal behavior. A lawsuit for wrongful death can only be brought by the personal representative of the decedent's estate, and the damages that are awarded become part of the estate. In order to bring a successful wrongful death case, the plaintiff must prove the following elements:

  • The death of a person,
  • Caused by another person's intent to harm or negligence,
  • The survival of family members who are suffering monetary injury/loss as a result of the death, and
  • The appointment of a personal representative of the decedent's estate.

The main measure of damages in a wrongful death case is pecuniary, or monetary, loss or injury. Pecuniary damages are generally defined as the loss of support, services, lost prospect of inheritance, and medical and/or funeral expenses. To determine the pecuniary loss, a judge or jury considers the age, health, life expectancy, intelligence, earning capacity, and the character and condition of the decedent. The circumstances of the people who would receive the money from the award is usually also relevant.

Children, the Elderly and Wrongful Death

Generally speaking, the value of the victim's life in a wrongful death action is measured by many factors including the victim's earning potential. This price-setting procedure can be difficult when it comes to the death of a child or an elderly person. For this reason, courts follow certain guiding principles when it comes to assessing the lost financial value of the death of a child or elderly person.

When a child dies the parents' recovery is limited to financial loss. These financial losses are determined by several characteristics including the child's relationship to the people claiming a pecuniary loss and the age, health, and circumstances of those claiming monetary losses. The child's sex, age, health, life expectancy, earning potential, and habits will also be used to determine the financial loss caused by the child's death. While many of these assessments are speculative in nature, the younger the child is, the more speculative the assessment. However, juries are not supposed to simply guess what the child would have contributed to the parents' support. To avoid basing an award purely on guesses, juries typically work with a work-life expectancy table as a starting point for calculations.

The death of an elderly person also has limited recovery potential. There are a few reasons why the award in a wrongful death case for an elderly person is small. First of all, once a person is past the age of retirement, it's assumed that he or she doesn't have significant earning potential. Secondly, the children of elderly people are typically adults who no longer need significant support or guidance from their parents. These factors typically result in modest awards in wrongful death cases involving elderly people.

Hiring a Personal Injury Lawyer

If you believe that someone you love has died because of someone else's intentional or negligent actions, you may want to contact a local attorney to find out your legal options. It's in your best interest to contact an attorney as soon as you can after the death of your loved one as there are time limits in which a wrongful death lawsuit must be filed.

Learn About Wrongful Death