Filing a Wrongful Death Lawsuit for Medical Malpractice

Doe entered the hospital for a planned heart-bypass surgery. Post-operatively, the doctor ordered that Doe be given a blood-thinning drug to prevent clotting. Unfortunately, Doe was allergic to this medication. Doe had mentioned this drug allergy while completing the hospital's patient intake questionnaire, but it wasn't recorded in Doe's patient chart.

Doe suffered several strokes after administration of the blood thinner, leaving Doe brain dead. Five days later, family members agreed to remove Doe from life support. Death followed within hours.

Doe's surviving relatives are considering a lawsuit to recover compensation ("damages") for what happened. But they're not sure what kind of lawsuit they should file. A medical malpractice case? A wrongful death lawsuit? How do the two cases differ, and what must be proved for each?

We'll answer those questions and more as we explain wrongful death lawsuits based on medical malpractice.

An Overview of Medical Malpractice Claims

While there can be important differences between them—your lawyer can explain—medical malpractice is just a popular name for medical negligence. If a health care provider doesn't act according to the applicable standard of care, that provider is negligent. When medical negligence causes a patient to suffer an injury, it's often called medical malpractice.

Return to our example facts. When a patient in Doe's position discloses a medication allergy, the standard of care requires that the allergy be prominently noted in the patient's chart and elsewhere, like on the patient's wristband. Not noting the drug allergy is a failure to meet (a "breach" of) the standard of care. Because that breach of the standard of care led to Doe's death, Doe's estate or surviving relatives have a viable medical malpractice claim.

Elements of a Medical Malpractice Case

To prove medical malpractice, you'll have to establish each of these five elements:

• a patient-provider relationship between you and the health care provider you're suing
• the applicable standard of care, which describes what your provider should have done to deliver appropriate care
• a breach of the standard of care, meaning your provider delivered substandard care
• you suffered an injury you wouldn't have otherwise, and
• your injury was caused by the provider's substandard care.

The standard of care is also sometimes called a duty of care. Regardless of what it's called, the standard or duty of care is an imaginary line that separates "negligent care" from "not negligent care." To meet the standard, your doctor must provide at least the same level of care as would a reasonably careful doctor having similar credentials and working in a similar community.

Hospitals owe duties of care to their patients as well, including those with a medical emergency who can't afford to pay for treatment.

(Learn more about the medical malpractice laws in your state.)

How to Prove Medical Malpractice

To prove most of these elements, you'll need one or more medical expert witnesses—providers with credentials similar to those of your provider. Your state's medical malpractice law probably spells out the necessary expert qualifications. If your case goes to trial, it'll be up to the judge to decide whether your experts will be allowed to testify.

(Find out why it's a challenge to win medical malpractice cases.)

Common Examples of Medical Negligence

Medical negligence comes in lots of different forms. In addition to giving a patient a drug they're allergic to, here are some other common examples:

• failing to diagnose, or failing to timely diagnose, an illness, injury, or condition
• anesthesia errors
• failure to properly treat an illness, injury, or condition
• errors during pregnancy and childbirth, and
• mistakes during surgery.

Hospitals and clinics can be negligent, too. Here are some of the errors to watch for:

• failing to verify that its medical, nursing, and other patient care staff are competent, safe, and properly licensed
• failing to fire incompetent, unlicensed, or unsafe employees
• failure to establish proper patient safety protocols, and
• understaffing of medical or nursing staff.

Who Can File a Medical Malpractice Case?

A medical malpractice case is typically filed by the injured patient, if the patient is legally competent. Minors and persons who've been declared legally incompetent will need someone—like a parent or a legal guardian—to file and manage the case for them.

(Get more information about filing a medical malpractice lawsuit.)

Medical Malpractice Damages

Should your medical malpractice claim succeed, you'll collect what the law calls "compensatory damages." As the name suggests, these damages are meant to compensate you for your injuries and losses. There are two categories of compensatory damages: Special damages and general damages.

Special damages. Also known as "economic" damages, special damages reimburse you for losses that come out of your pocket. Included are things like medical bills, lost income, and amounts you pay others to do household chores you can't do anymore.

General damages. Often called "noneconomic" damages, general damages cover losses that don't come out of your pocket. Typical examples include pain and suffering, emotional distress, disability and disfigurement, and loss of enjoyment of life.

In an effort to protect doctors and their insurance companies from liability, many states have enacted limits, or "caps," on general damages. These laws effectively shift the burden of provider errors from the negligent provider to the patient. If you live in a damage cap state, you might find the value of your medical malpractice claim reduced significantly.

(Learn more about damages in a medical malpractice case.)

Medical Malpractice Case Filing Deadlines

If you're planning to sue for medical malpractice, be sure to keep an eye on the lawsuit filing deadline, called the "statute of limitations." Every state makes its own deadline, and these laws are among the most difficult of all laws to understand and apply.

Miss the filing deadline and, absent an extension that gives you more time, you've lost the right to sue for your injuries. Not sure about the statute of limitations in your case? Speak to a medical malpractice lawyer right away.

An Overview of Wrongful Death Claims

Return to our opening facts. Had Doe lived, Doe could have filed a medical malpractice case against the surgeon and any other responsible providers. But because Doe died, Doe's survivors must bring a wrongful death claim instead. That's really all a wrongful death claim is: A personal injury case that the victim can't file, because the victim has died.

Every state has its own wrongful death statutes, laws that define wrongful death, identify who can sue, and spell out who gets to share in wrongful death damages. If you want to bring a wrongful death lawsuit, you must carefully follow your state's wrongful death laws.

What's a Wrongful Death?

As long as death results from someone else's wrongful act—negligence, recklessness, or intentional wrongdoing—state wrongful death laws generally call it a "wrongful death." In other words, it doesn't matter how death happened, as long as it resulted from another's legal misconduct.

Here are some of the underlying cases that often end up in a wrongful death claim:

• motor vehicle accidents
• falls and other incidents on dangerous properties (called a "premises liability" case)
• injuries caused by dangerous products (called a "product liability" case)
• medical malpractice, and
• injuries caused by an intentional act.

Don't confuse a wrongful death civil lawsuit with a criminal case. The same misconduct can give rise to both. Say, for example, that Smith and Jones get into a fight. Smith pulls out a gun and shoots Jones to death. Smith's misconduct is both an intentional tort (called a battery) and a crime (a type of homicide). Jones's surviving relatives can bring a wrongful death lawsuit to collect damages for the death. Prosecutors will charge Smith with a crime as well.

(Learn more about proving legal responsibility for a wrongful death.)

Elements of a Wrongful Death Claim

To have a viable wrongful death claim, you must prove each of these elements:

• a wrongful act or failure to act
• a person's death
• the death was caused by the wrongful act, and
• surviving family members suffered damages because of the death.

The first and third elements usually present the greatest challenges. It's here that you must prove the required elements of the underlying case. In other words, you have to prove one claim—like medical malpractice or premises liability—that's wrapped inside a second claim for wrongful death.

(Learn more about your state's wrongful death laws.)

Wrongful Death Actions vs. Survival Actions

In our opening example, Doe was injured by (and later died because of) a blood-thinning drug given right after surgery. But Doe lived for several days before dying after life support was ended. If you think about it, you can see that there are two sets of injuries and damages involved: Doe was injured and suffered damages because of the doctor's negligence, and Doe's family members have suffered their own damages because of Doe's death.

How does the law deal with these two kinds of damages? With two different legal claims. A wrongful death case pays surviving family members for their losses and damages. Another claim, called a survival action, pays damages to the victim's estate for injuries and losses the victim suffered between the date of injury and the date of death.

In some states, wrongful death and survival are separate claims. In others, certain survival damages can be recouped by family members as part of their wrongful death damages. Your lawyer can provide more details.

Who Files and Benefits From a Wrongful Death Lawsuit?

Your state wrongful death law explains who can sue for wrongful death. In some states, the personal representative of the victim's estate (also knowns as the "executor") must sue. Others allow a surviving relative to file suit, usually following the priority rules spelled out in the state's wrongful death or inheritance law.

Regardless of who files the case, a wrongful death lawsuit is brought to benefit the victim's surviving family members. When the victim left a valid will, courts will generally respect the victim's wishes and distribute the wrongful death proceeds according to their estate plan. If there wasn't a will, state inheritance law decides who gets a share of the damages.

Wrongful Death and Survival Damages

Like medical malpractice claims, wrongful death compensatory damages include both special and general damages. Each state decides what wrongful death damages are allowed, though most share at least some similarities.

Special damages. The most significant special damages are typically for financial losses such as:

• financial support the victim would have provided
• lost inheritance
• amounts paid for replacement household services, and
• funeral and burial expenses paid by the survivors.

Children (both natural and adopted) are entitled to financial support through the age of majority (usually their 18th birthday), or longer if they can show that the victim would have continued to support them through, say, college. Support for a surviving spouse generally runs until retirement age.

General damages. General damages are likely to include:

• loss of instruction, direction, and guidance the victim would have provided to minor children, and
• loss of consortium, covering the loss of intimate spousal relations.

A minority of states—Florida and Illinois are examples—let surviving relatives collect damages for their grief and emotional distress.

Survival damages. As mentioned above, some states let family members collect survival action benefits in a wrongful death case. So, for example, state law might allow them to recover for the victim's conscious pain and suffering, or for the costs of medical care and treatment between the date of injury and the date of death.

Finally, as is the case with medical malpractice damages, some states cap wrongful death damages. Where they apply, caps usually limit general, or noneconomic, damages. Your lawyer can provide more information about the allowable wrongful death damages in your case.

Wrongful Death Case Filing Deadlines

Every state has a statute of limitations on wrongful death claims. Don't be surprised if it's different from the statute of limitations for medical malpractice (or other) claims. In the event of such a conflict, the state's courts must decide which filing deadline controls.

What if the courts haven't spoken? Suppose the medical malpractice statute of limitations in Doe's home state is two years from the date of the malpractice. But the wrongful death limitation period is three years from the date of death. Which deadline should you apply?

To be on the safe side, always default to the shorter limitation period. In our example, you'd want to be sure to file a wrongful death lawsuit not later than two years from the date of Doe's surgery.

When Wrongful Death Is Caused by Medical Malpractice

To win a medical malpractice-wrongful death case, you must prove:

• the victim had a physician-patient relationship with the health care provider you're suing
• the applicable standard of care
• a breach of the standard of care
• the provider's substandard care caused the victim's death, and
• the victim's surviving relatives were damaged by the victim's death.

Follow Your State's Special Medical Malpractice Lawsuit Rules

Your state almost certainly has special rules that apply only in medical malpractice cases. All of these rules will apply to your medical malpractice-wrongful death lawsuit. In some instances, failure to follow the rules means your case can be dismissed, or you get hit with sanctions (penalties) for noncompliance.

In addition to the expert witness requirements and damage caps discussed above, watch out for:

• a short statute of limitations deadline, and
• a variety of special pre- or post-filing requirements, like screening panels, advance written notice of the lawsuit, mandatory mediation, and the filing of a “certificate of merit.”

For the most part, these rules are meant to drive up the costs of medical malpractice cases, making them less attractive. They also serve as traps for unwary litigants not represented by experienced legal counsel.

Other Conflicts Between Malpractice and Wrongful Death Rules

We talked above about potential conflicts between medical malpractice and wrongful death statutes of limitations. You might run into other conflicts, too. For instance, your state could have one damage cap for wrongful death suits, and a different cap for medical malpractice claims. Or maybe it isn't clear when the applicable statute of limitations starts to run.

Chances are that your state supreme court has resolved the conflicting rules. If not, you'll want advice from an experienced local attorney. Absent guidance from the state's highest court, lower courts tend to follow the medical malpractice rules in the event of a conflict.

Do You Need a Lawyer for a Medical Malpractice-Wrongful Death Case?

In a word: Yes. Most lawyers who don't regularly handle these cases won't touch them with a ten-foot pole. The chances of a costly error—maybe one that's case-ending—are simply too great. You'll be dealing with insurance adjusters and lawyers who know how to make quick work of unrepresented litigants.

Here's a partial list of the things an experienced medical malpractice-wrongful death lawyer will do:

• gather and organize medical and funeral records and bills
• investigate the victim's work history and collect employment and income records
• have the case evaluated by qualified experts to find out if it's worth pursuing
• navigate through your state's pre-filing roadblocks so that you can file in court
• understand the laws and court rules that control your case, including the statute of limitations deadline
• handle the necessary pretrial work to discover the relevant facts, both pro and con, about your claims and the provider's defenses
• arrange for all the expert witnesses you'll need to testify before and during the trial
• prepare, respond to, and argue pretrial motions, and
• if necessary, try your case in court.

Chances are you'll get just one opportunity to present your medical malpractice-wrongful death claim. Don't risk going it alone. When you're ready to move forward, here's how to find an attorney who's right for you.