Filing a Wrongful Death Lawsuit for Medical Malpractice

A wrongful death case arises when a patient dies as a result of medical malpractice. Wrongful death lawsuits are strictly governed by state law, and there are certain procedures that are unique to wrongful death lawsuits (as opposed to broader personal injury cases).

While wrongful death laws differ from state to state, several issues are common to all types of wrongful death cases, such as:

• who can file a wrongful death lawsuit on behalf of the deceased's estate
• how does a person get appointed to represent the estate, and
• what types of damages are allowed in a wrongful death case

In the sections that follow, we'll address each of these issues in-depth.

Who Can File a Wrongful Death Lawsuit on Behalf of the Deceased?

The person who will end up filing a wrongful death lawsuit on behalf of the deceased plaintiff will often be the plaintiff's closest surviving relative -- such as a spouse, child, or parent.

The person filing the lawsuit will also often be the executor or administrator of the deceased's estate (if he/she had one). In most cases, the deceased's family will have no dispute over who should act on behalf of the deceased, but in some cases the surviving family members will get into a vehement dispute over who will be the representative of the estate. It is the representative of the estate who will have the legal authority to file, control, and ultimately settle the lawsuit.

If, for example, the deceased had no surviving spouse or parents, but left two children who are not on speaking terms with each other, that can spell trouble. Generally, it would be one of the children who would become his/her parent's representative for the purposes of filing the lawsuit, but the other may object. In such a case, the dispute can only resolved by the courts.

How Does the Person Who Wants to File the Lawsuit Get Appointed?

Whether it is by agreement or after a hearing or trial, the deceased's representative must be appointed by the state court that handles wills and estates. In many states, that court is called the probate court.

The probate court will require that the proposed representative give notice to all interested parties, such as relatives and other persons whom the deceased may have supported. If no one objects, the court will appoint that person the representative of the estate. If someone objects, there will have to be a hearing, and then the court will decide who would best represent the interests of the deceased's estate.

Types Of Damages Allowed In A Wrongful Death Case

The plaintiff in a medical malpractice wrongful death case can generally recover the customary damages that are available in a medical malpractice case, such as lost earnings (but not generally future lost earning capacity), lost employment benefits, medical bills, and the deceased's pain and suffering. For further information on damages in a medical malpractice case in general, please see Types of Damages and Compensation in a Medical Malpractice Case.

The damages that are allowed in a wrongful death case differ from state to state, so, if you believe that you may be able to bring a medical malpractice wrongful death lawsuit on behalf of a family member, you should contact a medical malpractice lawyer as soon as possible.

In addition to the standard medical malpractice damages, the plaintiff in a wrongful death case can of course collect as damages the funeral and burial expenses for the deceased. Any family members whom the deceased supported financially are entitled to damages for loss of support for the period of time into the future that the deceased would have supported them.

In order to be awarded damages for loss of support, the family member must prove that the deceased supported him/her financially, and must prove the amount of the support. Minor children will receive loss of support through age 18 and possibly for college if the child can prove that the deceased would have contributed to the child's college education. A widow will receive loss of support until the deceased's presumed retirement age (usually 65). A widower can receive loss of support if he can show that his deceased wife supported him. Parents or other relatives can also receive damages for loss of support if they can prove that the deceased supported them.

Additionally, the deceased's spouse is entitled to damages for loss of consortium and sometimes for loss of the deceased's services around the house. Some states allow damage awards to the deceased's children for what is called loss of guidance and nurture (this is slightly different from loss of consortium). Loss of guidance and nurture represents the value of the deceased parent's lost parental advice and teaching. Some states allow the plaintiff in a wrongful death case to receive punitive damages, if the defendant's (the doctor or hospital) conduct is deemed particularly reprehensible.

Limitations On Damages In Wrongful Death Cases

Some states have caps (award limits) on certain types of damages in wrongful death cases. In order to learn more about your state's wrongful death rules, you may want to contact a medical malpractice lawyer.