If a loved one has died as a result of negligent medical care from a physician or other health care provider, you may be able to bring a civil lawsuit for wrongful death. This article discusses wrongful death cases generally and wrongful death cases against health care providers in particular.
A wrongful death claim is based on a statute, some version of which is in all 50 states, that permits the heirs or representatives of a person killed through a wrongful or negligent act to recover a civil remedy (compensation) against those responsible for causing the death.
The wrongful death and survivor statutes were created by state legislatures to compensate close family members and other heirs for the death of their family member, including damages for lost financial support, the decedent’s pain and suffering prior to death, funeral expenses and other damages depending on the statute and the context of the case.
The exact damages available can change from state to state. For example, California does not provide recovery for the decedent’s pain and suffering prior to death, unless the decedent was an abused elder.
A negligent health care provider can be sued for wrongful death. However, all wrongful death cases require that the plaintiff prove the defendant was at fault for the decedent’s untimely demise. When the wrongful death case is against a health care provider, the rules that apply to all medical malpractice cases will also apply to the wrongful death case. In other words, because you are claiming that medical malpractice caused the wrongful death, you must prove that medical malpractice occurred and follow the state’s medical malpractice rules in doing so.
The fact that a wrongful death case against a health care provider qualifies as medical malpractice is not necessarily a good thing for the plaintiff. The special medical malpractice rules are specifically designed to make suing a health care provider more difficult, compared with other injury cases against "ordinary" defendants. The unique procedures and limitations typically include:
First, you will need to prove that the decedent’s health care professional was negligent. You will be required to find an expert in the same field of medicine to testify what the proper medical standard of care was and whether the health care provider lived up to that standard.
Second, you will need to prove that not only did the decedent’s provider not live up to the standard of care expected in the same circumstances, but that the decedent’s death occurred precisely because of the provider’s “sub-standard” decisions and actions.
Finally, you will need to establish your (and the decedent’s) damages. In essence, the wrongful death damages try to put a dollar value on what the immediate family members of the decedent have lost. In all states the main factor in figuring wrongful death damages is the financial support the family members could have expected to receive from the decedent. Not just the decedent’s salary, but his or her good and bad habits, work ethic, special capacities and remaining life span, among other things, factor into the calculating the damages.
Some states also include less concrete damages like “loss of consortium” (i.e. companionship) and guidance in the wrongful death damages. Fewer states also permit damages for the plaintiff’s mental pain and suffering resulting from the loss of the decedent. To understand the various types of damage claims, read Survival Actions vs. Wrongful Death Claims.
Wrongful death statutes typically have a specific statute of limitations (i.e. deadline for suing) and/or a specific limitation on how much a plaintiff can recover in damages. However, all states’ medical malpractice rules have a specific statute of limitations and many also have specific limitations on how much a medical malpractice plaintiff can recover. When these rules conflict, most judges apply the medical malpractice rules. If you're stuck trying to sort out the legal specifics, it may be time to consult an experienced attorney in your area.