Fatal Injury - Medical Malpractice Lawyers
A fatal injury lawyer deals with wrongful death compensation claims which are started when a person is killed due to the misconduct or negligence of someone else including medical malpractice. The negligent party may be an individual, an entity or a company. In a wrongful death case, the Plaintiff is the family of the deceased individual and they are often called "distributees". Commonly, the distributees are the spouse, children or occasionally the parents of the individual who was killed. In fact, a case may only be brought against the defendant by one or more of the distributees of the loved one who died.
In medical malpractice wrongful death suits, there are several aspects of the case the fatal injury compensation lawyer will need to consider. They need to consider the actions that were done establishing the personal injury of the decedent. They need to consider the conscious pain, suffering and medical expenses brought about as a result of the accident or injury which were endured by the decedent. The wrongful death lawyer also needs to consider the impact to the distributees as a result of the death of the individual. The individual may have been an income producer or a caregiver for the family and their absence could have a great impact on the lives of the family members after the death of the decedent.
Wrongful Death Lawsuit
There are several things that need to be present in a fatal injury compensation claim in order to establish that a wrongful death has occurred. There must first be the death of an individual. The death of the decedent must have been caused by another individual's negligence or perhaps by the intent to harm the decedent by the defendant. There must be family members surviving the decedent who have monetary losses as a result of the death of their loved one. A personal representative must be declared by the family in order to represent the estate of the decedent.
There are several circumstances that result in a wrongful death case. The situation could arise out of a medical malpractice situation resulting in patient death. There could be a car accident or an airline accident. Occupational injuries or occupational exposures to toxins can cause death and can result in a wrongful death case. Any type of criminal behavior can result in a wrongful death. Any death that occurred during what should have been a supervised activity can be declared a wrongful death.
Most of the award in a wrongful death case is pecuniary. This means that the fatal injury compensation award reflects money lost to the family as a result of the loss of their loved ones. The amount awarded must be fair and equivalent to the actual losses the family would incur. Expenses related to medical care of the decedent can also be included in the financial award. Any interest incurred between the time of death and the time of the award is also included in the cost of the award.
A wrongful death lawyer determines the pecuniary losses by determining the age of the decedent, the health condition of the decedent, his or her earning capacity, his or her life expectancy, his or her intelligence and the type of job the individual did for a living and was expected to do for a living in the future. The size of the award may be adjusted upward or downward, depending on the situation. The decedent may have squandered his or her income, and this will decrease the award. In addition, there may be a disagreement as to the future earnings of the decedent. He or she may have been young and may have had a good future but may be making minimal income at the present time. The judge may decide that the future earnings were not as good as the Plaintiff's wrongful death lawyer believes in might be. Even if the decedent was unemployed, the financial award will be the same money as though the decedent was actually working.
The Plaintiffs are able to present expert testimony as to the present and future earnings of the decedent. The expert can determine the actual earnings of a housewife that, in reality, adds no more actual income to the family but adds value to the family.
Punitive damages are allowed in wrongful death cases. This is especially the case in serous or malicious acts against the decedent. It is designed to be a deterrent to others who might do the same act. Conditions where the individual purposely performed an act against the decedent or acted against the decedent in the commission of a crime are especially likely to have punitive damaged damages added to the award.
In addition to the usual wrongful death damages, the family members may be able to receive damages for the personal injury to the decedent. These are known as “survival actions” because the action actually survives the person involved. The survival action and wrongful death action are put together and given to the decedent's estate. In survival actions, the jury must determine that the decedent was conscious and in pain or suffering for a period of time and must determine the severity and length of time the decedent suffered while they were ill.
If a family member dies following an injury or accident brought on by the negligence or perhaps by the misconduct by others, a wrongful death law suit may be brought against the individual who caused the accident. You need the advice and representation of a qualified and experienced fatal injury compensation lawyer. This lawyer will understand things like time lines for filing the law suit, issues related to current employment status of the decedent and can determine the future income potential of the person who has died. These things are important as they represent the bulk of the law suit.
The personal injury lawyer has a difficult job to do. They must personify a person who has died and make sure the judge understands who that person was and what they meant to you, both personally and financially. They must, in essence, bring a dead person to life and help the jury recognize that the individual had value in life that needs to be compensated for. Setting a price on a human life is difficult and your lawyer should be able to do this with finesse.
It is particularly difficult to determine the value of the wrongful death of a child who is not yet earning any income or an elderly person who has already earned all their income and now makes no income. The primary aspect of wrongful deaths is pecuniary, which make it difficult to determine whether or not a child or an elderly person has value from a wrongful death perspective.
When children are involved in a wrongful death lawsuit, they have not yet begun to work but presumably have a reasonably future working potential. Their current pecuniary loss is minimal. The wrongful death lawyer determines damages by looking at the age, gender, work expectancy, life expectancy, health and the child's habits. The child has a calculable earning potential which can be determined. The age and health of the person claiming pecuniary loss is also taken into account. Much of all of this is, of course, speculation, and the speculation becomes more difficult the younger the child was at the time of death. Overall, the pecuniary award for children tends to be quite small as the totality of their life's income can't be determined.
In only a few states can wrongful death suits be brought following the death of an unborn fetus. Most states require that the child first be born alive before a wrongful death case can be brought against the defendant. The parent's emotional and personal losses as a result of losing their infant do not count against a wrongful death case.
The recovery potential in a wrongful death suit when the decedent is elderly tends to be low. This is a person who has generally already retired and has no future earning potential. The family members tend to also be adults who no longer require that their parent earn money on their behalf. Talk to a personal injury attorney to see if your state has specific laws around wrongful death and the elderly.LEGAL HELPLINE: ☎ 855 804 7125
The author of the substantive medical writing on this website is Dr. Christine Traxler MD whose biography can be read here