Virtually every person’s death can be called “wrongful” and few if any gradations of “wrongfulness” can be applied to a person’s demise. In the medical arena, however, treatment by a physician is rarely if ever expected to be the cause of a person’s death. A patient who dies as a result of a medical error has suffered a “wrongful death” that is very possibly higher on a wrongfulness scale, and his or her heirs are well within their rights to seek recompense for the error that caused the wrongful death.
Persons who are considering filing a medical malpractice lawsuit following another person’s wrongful death need to consider a few special considerations that are unique to wrongful death negligence cases:
- A person cannot file a wrongful death lawsuit unless he or she has a particular relationship to the deceased party, as for example, he or she is that party’s widow or child, or an otherwise real party of interest to the decedents lifespan
- Damages in wrongful death lawsuits differ from other medical malpractice cases in that they may be more heavily weighted to emotional damages over noneconomic damages
- Statute of limitations issues for wrongful death cases will require the initiation of a lawsuit within a short period of time after the person’s death
- Proving that medical malpractice caused a person’s death can be more difficult than proving a medical malpractice injury
Who Can File A Wrongful Death Lawsuit?
A person’s heirs under the laws of the state in which the deceased person resided will generally have the right to bring a wrongful death lawsuit against a physician whose error caused the death. A deceased person’s parents, spouse or children will naturally have this opportunity, yet modern society is expanding the class of individuals who might be considered heirs. For example, at least prior to the time when gay marriage became accepted in all fifty states, a couple married in a state that allowed gay marriage may not have been deemed to be each other’s heirs in another state that did not allow gay marriage. In this latter case, the deceased person’s spouse may have been precluded from filing a wrongful death medical malpractice lawsuit, as he or she would not have been deemed to be an heir of the decedent.
Wrongful Death Damages Calculations and Recovery
The kinds and classifications of damages that are recognized in wrongful death cases will vary dramatically among the various states. Many states do not allow heirs to recover noneconomic damages for pain and suffering that the deceased party experienced before his or her death, although noneconomic damages may be allowed for a survivor’s mental anguish or loss of companionship. Economic damages can be awarded for medical and funeral expenses, and lost earnings, benefits and inheritance. Some states might provide a noneconomic damages award for the deceased party’s pain and suffering in extreme cases, for example, if the party experienced some form of abuse in a nursing home or medical facility before his death. In all cases, proving these damages may be more difficult due to the level of speculation and economic analysis required to verify damages for things like lost earnings.
Statutes of Limitations Issues in Wrongful Death Suits
Wrongful death cases will generally need to be filed within two to three years after a person’s death. This deadline varies from state to state and an attorney can provide consultation as to which deadline is applicable. Few exceptions, if any, are in place to this deadline.
Proof of Injury and Wrongful Death
As with any medical malpractice case, no liability will be found unless the medical error caused the person’s injury. Because many wrongful death cases involve elderly persons who may have had multiple medical problems, determining whether a person died due to illness or due to a physician’s error can be a challenge. Even where causation is proved, an outlier defense such as the Feres Doctrine, which precludes lawsuits for injuries or death caused by active military service, can defeat a wrongful death lawsuit. The initial question to ask is whether the physician’s error was the direct and proximate cause of the patient’s death. This requires a detailed and thorough analysis of all facts and circumstances leading up to the patient’s death.
A person who has any questions as to his or her status as an heir of the person, damages that might be recovered, or the cause of a person’s death should consult with an attorney to confirm his or her right to file the wrongful death lawsuit and to recover damages. A family member’s or loved one’s wrongful death will be an emotional occasion, and an attorney can assist in navigating the sometimes-difficult rules and standards that apply to wrongful death cases.