They are in the news everywhere. Michael Jackson’s family is suing his promoters for wrongful death because they didn’t vet his physicians well enough prior to the pop star’s health decline and subsequent passing. Actress Vanessa Marquez’s mother is suing the police for her wrongful death during a welfare check gone wrong that resulted in her fatal gunshot wounds.
Countless other lawsuits dealing with celebrities or big names make the headlines all the time. But what about those average Joes? Regular people who have become the tragic victims of someone else’s negligence but aren’t “important” enough to make the front-page news?
These victims of malpractice, malicious intent, or other forms of wrongful death are just as important as the celebrities in the headlines and their loved ones are just as rightfully deserving of closure and attaining accountability.
But many of these tragedies are swept under the rug when the families of victims get caught up in the whirlwind of the aftermath. It’s a new situation that no one expects to be in and if you don’t know your rights or have someone who does advocate for you, it’s easy to be told you don’t have a case or any legal recourse.
Before you listen to those corporate suits or higher-ups whose ultimate goal is to protect their bottom line, do your research. Talk to a lawyer who cares, like those at Hershey Law, and learn your rights and what makes up a wrongful death case.
To help you get started, here is everything you need to know about a wrongful death case in a nutshell.
Just the Facts – What Are the Necessary Parts of a Wrongful Death Lawsuit?
Wrongful death isn’t just negligence from malpractice. It is a wide array of circumstances that range from malpractice to murder, and your situation may fall anywhere in between.
By definition, a wrongful death claim is the legal action that is taken against someone who is believed to have negligently or purposely caused the death of someone else. When a victim was killed in a personal injury action due to negligence or an act that was intentional and resulted in their death, no matter what the circumstances were, you have a wrongful death. Whether you can file a lawsuit or not needs a bit more clarification.
The most common forms of wrongful death are usually in cases involving things like negligent driving that caused a car accident. Drunk driving, distracted driving, or failure to keep up with the safety of your vehicle are negligence.
Medical malpractice is another common type of wrongful deaths, when the doctor failed to thoroughly treat the victim or didn’t diagnose a fairly obvious condition that resulted in their passing or was simply negligent in their treatment.
Sadly, another quite common form of wrongful death is found in intentional acts such as a physical altercation or a robbery. These types of wrongful death lawsuits are often seen in the headlines if they are unusual enough or “sensational” enough for the media to catch on, but that spotlight doesn’t help the grieving families – getting the person responsible to be held accountable does.
How Do You Prove a Wrongful Death?
To get that person responsible to be held accountable, it is important that your case has a few crucial aspects to it.
The first, and one of the most important, is that you have to have a lawyer who knows what they are doing. Even the best laid cases that have been solidly put together from start to finish have been blown apart by lawyers who know statutes that an unseasoned attorney did not understand. Ask questions of your potential lawyer and make sure they have experience in these types of cases. If they don’t, feel free to move on to your next consultation (and understand that in wrongful death cases, your consultation should be free).
Second, verify with your attorney that you are legally allowed to initiate the wrongful death claim. This should be done first thing before either of you waste your time. You should be a representative of the estate of the deceased in some form, but each state has a different statute regarding who is entitled to a legal claim and who can file a lawsuit on the victim’s behalf.
While there are typically givens – people who have the right no matter which state, such as parents of minor children or the spouse of the deceased, – other situations and relationships are not quite as clear cut. Your attorney should be well-versed in the laws of the state he or she practices in and should be able to give you an immediate answer as to whether you have the right to file the wrongful death lawsuit or not.
The final thing that you need to have to file and win this type of – and any – lawsuit is proof. As the person filing the claim, the burden of proof is on you. You and your attorney must be able to prove that there was a correlation between the actions of the defendant and the death of your loved one.
In cases where negligence was the catalyst for the tragic passing, like in the Michael Jackson lawsuit, there are three main aspects that you would have to prove:
- First, that there was a duty of care owed to the victim by the defendant. This means that the defendant, whether they were the person behind the wheel of the car that killed your loved one or the doctor who held their lives in their hands, had a duty to take reasonable expected measures to keep the other person safe. For drivers, we all accept this duty when we get our licenses or get in the driver’s seat.
- Second, you and your attorney need to prove that the defendant was, indeed, in breach of the duty of care they were supposed to provide. This may have been due to distracted or drunk driving, negligent treatment, or even improperly keeping up their property in the event of a death due to a slip and fall.
- Last, you have to provide a direct correlation between the breach of duty and the death of your loved one. This may sound cut and dried, but a good defense attorney knows how to use legalese to cast a shadow of doubt on your argument.
This aspect of your case is usually the part that causes these lawsuits to become long, drawn out claims. Your attorney and the defense attorney will want to be thorough in their investigations. Your lawyer will be creating a case that “proves causation,” or that each of the defendant’s actions led to the death in question. The defendant’s attorney, on the other hand, will be creating the same case with the intent to disprove the causation.
This may involve the inclusion of expert witnesses, crime scene photos, careful scouring of police reports and other documentation, depositions, and other investigations that can – and should – take time.
A wrongful death claim is a serious allegation. Both sides should be thorough in their investigations so that the truth comes out, which is the ultimate goal in a court of law. However, this usually means that these cases can last for months and even years.
When the Dust Settles – Compensation in a Wrongful Death Case
When the final “winner” in a wrongful death case is awarded to the deceased, compensation is determined differently than it would be in other personal injury cases. The damages paid out in these cases are divided into categories of loss that consider the surviving family members’ suffering.
Considerations are made for aspects of the survivors’ life such as:
- Any pain and suffering the victim might have endured before their passing,
- All medical costs that the victim incurred prior to their death,
- Funeral costs and burial needs,
- The income that the victim would have provided in the future that is now lost,
- Tangible services that the victim would have provided to the surviving family members, and
- Emotional considerations such as loss of care and guidance that the survivors are now unable to receive.
There are always sensational lawsuit settlements splashed throughout the news, but those expectations are not necessarily reasonable. Wrongful death cases do generally result in higher compensation due to the severity of the loss – there is no getting back your loved one – but there are also many details that come into play that determine the monetary amount you can expect to receive.
Go to the Experts Who Know Your Rights
Before you simply give up and move on with your life after your loved one’s unexpected passing, check with an attorney who knows your rights and wants to help you hold the person responsible accountable for their actions.
Not everyone is willing to fight the battle of proving a well-respected member of the community was negligent, for example, but those of us at Hershey Law want to help you defend your rights. Contact us today for your free consultation.