The Process Of Wrongful Death Litigation
If a family member is suddenly killed by a reckless act or malicious conduct by another you can file a wrongful death lawsuit. You may be entitled to financial compensation. There are two types of damages you can get that include the amount of money decided by the court to punish the defendant and damages for your expenses from the death of your loved one. If you think you have grounds for wrongful death litigation the first thing you should do is find an attorney that specializes in this field. Your attorney may begin by asking for damages from the defendant. If this is not settled then a document called a complaint will be filed. You, as the plaintiff, will be suing the defendant and a third party. A processor will serve the defendant your complaint. The defendant will have a specified amount of time to respond, usually about 20 to 30 days.
There will be a discovery period where the plaintiff and the defendant will have time to gather facts about the case. This can include questions, a deposition or interview in front of the court reporter and or requests for documentation and items. Attorneys for both sides may make arguments about the case to the court before the trial begins. This can involve details about the complaint, about an argument or about evidence.
As the trial nears, the court may ask the attorneys to meet with the judge to settle the matter. Sometimes the parties are sent to mediation before a case goes to trial. Parties are encouraged to settle rather than go through a court battle that could be costly. If this does not work, trial will be set and witnesses will be called. They will be cross-examined and evidence will be presented. The attorneys will argue their points and the judge or a jury will decide on the verdict and the amount of damages if the plaintiff wins.
Either party can appeal if there is a significant legal error in the trial. When the trial has concluded and a verdict has been entered, if the plaintiff has been awarded damages they will need to collect. If the defendants do not pay, the court may allow the plaintiff to, recover from the defendant's assets and collect as much of the award as they can. In every state close family members can bring wrongful death actions. In the case of minor children the state will require a legal guardian to represent them. Most suits involve some sort of negligence such as medical malpractice, faulty products, a work accident or a driving accident.
Damages that are available differ in each state. Some of the damages that might be available include medical and funeral expenses, loss of the victim's wages from their time of death to the expected time of their retirement or death, loss of benefits such as medical coverage and pension plans, loss of inheritance, damages for the pain, suffering and anguish of the surviving family members, loss of companionship, nurturing and care to the survivors and punitive damages. The judge or jury will decide on the amount of damages. They will take into consideration how the decedent handled their money, how much they saved, how much they gambled or if they squandered their money. It may be less for a family whose provider gambled away more than half of their income than for one who provided well for their family. Damage for future earnings is called present value. For example if the decedent had 30 years left to work and was making $100,000 a year it would not be based on multiplication of these two numbers. It would be based on an amount of conservative investment over this same period of time. These are complicated calculations. They include the situation inside of the home, the nurturing and if the homemaker of the family is killed the costs for child care, transportation, shopping, cleaning, laundry and cooking. Punitive damages are awarded for bad conduct and are not always available. In states where this is allowed the plaintiff must prove that the defendant's actions were malicious or intentional.
Damages can be awarded by the court to the family of the victim for medical care, funeral expenses, burial, pain and suffering that the family will or has endured, the income they would have provide for the family and any other expenses brought about by the wrongful death. Receipts must be kept and presented to the court for reimbursement. Money awarded to the family is meant to discourage the defendant from similar acts in the future. The amount is at the discretion of the jury. The judge has the power to review and reduce it if they feel it is excessive.
In a medical malpractice action when a health care facility, hospital or doctor breaches their standard of care you must prove that the care was below the standard that a reasonable health care facility, hospital or doctor would provide. Expert witness are needed to help you prove this and you must prove that the breach was the proximate or direct cause of the damages. These are considered to be tort or personal injury lawsuits and the damages are meant to compensate the plaintiff. If negligence killed the patient then the family can sue for wrongful death. Recovery can include loss of companionship, funeral expenses and wages that the patient would have earned over the course of their life. If the defendant is proved to have been grossly negligent then there can also be punitive damages. Some states have a limit on how much non-compensatory damages can be. In California the limit is $250,000 and many states are similar.
Some of the things that can limit wrongful death litigation damages are when a person is killed on an airline or traveling between nations. There can be specifications of a person's worker's compensation insurance that can change the amount. There is no amount of money that can compensate for the loss of a life and the loss of a loved one. Despite this, justice must be served and it is appropriate to file a claim if it is warranted.
