A "wrongful death" occurs when a person is killed due to the negligence or misconduct of another individual, company or entity. Every state has a civil "wrongful death statute," or set of statutes, which establish the procedures for bringing wrongful death actions. An action for wrongful death belongs to certain persons identified by statute. In most states, such persons will include the decedent's immediate family members, such as surviving spouses and children, and sometimes parents or siblings. An attorney experienced in wrongful death law can explain all of the intricacies of these lawsuits and help achieve the best possible outcome for survivors.
Q: What if a person dies before bringing a personal injury lawsuit?
A: It depends on a person dies as a result of the injuries or from unrelated causes. If a person injured in an accident subsequently dies because of those injuries, that person's heirs may recover money through a lawsuit. Every state has a law permitting an action when someone causes the wrongful death of another. If a person with a personal injury claim dies from unrelated causes, the claim survives in most cases and may be brought by the executor or personal representative of the deceased person's estate.
Q: What if an unborn fetus dies?
A: Many states require that a child must be born alive for its death to constitute the first element of a wrongful death action, so the death of a fetus might not be actionable. An attorney can tell you what the precise law is in your state.
Q: When someone dies, what is the difference between the civil and criminal cases that can be brought regarding the death?
A: A criminal case arises when the government seeks to punish an individual for an act that has been classified as a crime. A civil case, on the other hand, usually has to do with a dispute over the rights and duties that individuals and organizations legally owe to each other. The burden of proof is higher in a criminal case, and the penalty imposed is a criminal sanction, whereas, in a civil case, the defendant will typically have a monetary judgment entered against him/her.
The Physician-Patient Privilege in Wrongful Death Actions
In wrongful death actions, the issue of the physician-patient privilege, which protects the privacy of a decedent's medical records, often arises. The general rule is that unless the patient/decedent waives the privilege, a physician is not allowed to disclose any information acquired in attending to the patient in a professional capacity.
Wrongful Deaths Involving Children and the Elderly
Setting a price on human life is not an easy task, but it is one that courts and juries are required to do in wrongful death actions. Because the primary measure of damages in a wrongful death action is pecuniary (financial) loss, the death of a child brings up difficulties in arriving at an adequate damage award. When an adult dies, the pecuniary loss to the family is readily quantifiable. For example, when a parent dies, a child may seek damages for loss of the parent's care, income, nurturing, and guidance. When a child dies, the parents' recovery is limited to their pecuniary loss, which is usually quite small.
Statutes of Limitations and the Discovery Rule
All civil actions, including wrongful death actions, have time limits as to when they must be filed. These time limits, or "limitations periods," are contained in laws called "statutes of limitations." If you do not file your action before the expiration of the applicable limitations period, in most cases, you permanently waive your rights to recover damages in a cause of action.
Settlements and Damages in Wrongful Death Cases
Wrongful death actions can be very complicated, as the wrongful acts of several parties may have contributed to an individual's death. Pre-trial, out-of-court settlements are common in wrongful death cases, because most defendants want to avoid the publicity of having caused a death. When such out-of-court settlements occur, a reduction of the wrongful death damages award issued by a judge or jury will also occur. Thus, if a plaintiff settles a claim against one defendant, the plaintiff's recovery from any other defendant is thereby reduced. Additionally, the plaintiff's release of one defendant frees that defendant from liability to contribute to any other defendant, and waives his/her claim for any contribution from co-defendants. In other words, the released defendant is out of the action, and the remaining defendant(s) will pay no more than their comparative share of the culpable conduct as found by the jury.
Fichera & Miller, P.C., in Chicago, Illinois, represents clients facing motor vehicle injuries, medical malpractice, and other personal injury matters in the Chicago Loop and the Chicagoland area, including communities such as Elgin, St. Charles, Oak Brook, Carpentersville, Aurora, Bartlett, Schaumburg, Maywood, Oak Park, Cicero, Arlington Heights and Naperville.
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