Understanding a wrongful death action

How do you know if you have a claim? Who can sue for wrongful death?

When a spouse dies, you and your children are not merely grieving that person. You are suddenly minus a significant source of income. You may have high medical bills from the emergency room care, as well as funeral costs. You have other losses such as household chores piling up and not being able to turn to your partner for counsel or comfort.

A wrongful death action seeks compensation on behalf of the surviving family members for those tangible losses. The lawsuit asserts that if it were not for the negligent party, your spouse would still be alive and you would not be facing these hardships.

WHAT MAKES A DEATH “WRONGFUL”?

People die in car accidents, in the workplace, in medical care and other circumstances. Sometimes it’s no one’s fault. A wrongful death lawsuit asserts that your loved one died because of someone’s careless, reckless or even intentional actions. The negligent party could be an individual, like a truck driver or a doctor. It could be an entity, like a nursing home or a product manufacturer.

In the case of a defective consumer product or workplace equipment, it would be necessary to show that the defective product was dangerous as designed, manufactured improperly or did not include safety warnings. In the case of a fatal car accident, a wrongful death action might claim that the other driver was distracted or violating traffic laws, or that the vehicle itself was unsafe. A property owner might be sued for ignoring a safety hazard that led to a fatal fire or fall. And so on.

HOW IS WRONGFUL DEATH COMPENSATED?

In New York, a wrongful death action can be brought by the spouse, children or parents of the deceased, or by the personal representative of the estate. Monetary damages may include medical expenses incurred prior to death, funeral expenses and projected earnings over the person’s expected lifespan. A wrongful death lawsuit can also seek compensation for the tangible impact on the survivors: loss of consortium (sexual relations), loss of love and support, loss of parenting advice and household services.

A separate claim called a survival action may apply if the person experienced conscious pain and suffering prior to passing, or mental anguish over their impending death. This claim is brought by the estate. Any proceeds are distributed to heirs according to the person’s will or the New York laws of intestacy.

DISCUSS YOUR CONCERNS WITH A LAWYER

In most cases, a wrongful death lawsuit must be filed within two years of death. The statute of limitations may be sooner in some circumstances, such as medical malpractice or suing a government entity. The best recourse is to preserve the right to sue. Important evidence may surface in support of the claim. A lawsuit does not necessarily mean going to trial. Most cases are resolved out of court.

If you believe your spouse or partner died because of someone’s negligence, find a personal injury lawyer with a successful record in wrongful death litigation.