Criteria for a Filing a Wrongful Death Claim

Posted by on Jan 27, 2017 in Wrongful Death | 0 comments

Criteria for a Filing a Wrongful Death Claim

Thousands of medical malpractice lawsuits, where doctors, nurses, hospital personnel and or a hospital itself is named as defendant, are filed in courts all across the U.S. every year. Specific basis of lawsuits vary, but their common factor is gross negligence. To name a few of the specific basis of these lawsuits, there are:

  • Bypass on Wrong Artery;
  • Heart Surgery on Wrong Patient;
  • A Surgeon Drilling a Hole on the Wrong Side of a patient’s Head;
  • A seventeen year old girl dying after a heart and lung transplant due to incompatible blood type of donor;
  • A man remaining conscious during exploratory surgery;
  • A fertility clinic confusing DNA resulting to a woman being impregnated with the sperm not of her husband’s but of a complete stranger;
  • Misdiagnosis; and,
  • Wrongful death due to delayed treatment (a most frequent case in hospital emergency departments)

One well- known court case that intends to prove gross negligence and, thus, the liability of doctors, nurses and other hospital personnel is the case of Ms. Esmin Green, who died on an emergency room floor after being left unattended for about 24 hours. Despite hospital guards seeing Ms. Green lying (with her face down) on the floor after she collapsed, no one did anything to help her.

In the event of unexpected or wrongful death of a person due either to the willful misconduct or negligence of another., family members or dependents (legally called“real parties in interest”) of the deceased can pursue legal action against the liable party through the filing a wrongful death lawsuit. This special kind of personal injury lawsuit is for the benefit of the “real parties in interest”; it will enable them to seek compensation for whatever pecuniary, or financial, damages they may suffer, including loss of financial support due to the death of the victim, loss of the dead victim’s services, medical and funeral expenses, and lost prospect of inheritance.

While “real parties in interest,” would unquestionably point to the victim’s own family (husband/wife and children) or parents (if the victim is not yet married), some states also recognize certain individuals, who may be considered as among these “real parties in interest.” Recognized in some states include:

Financial dependents, like a life partner (who is financially dependent on the deceased) or a putative spouse (a person who, in all sincerity, believes that he/she and the deceased were married):

Distant family members, such as grandparents and siblings; and,

Any person who is financially affected and made to suffer because of the death of the victim; this is actually due to the loss of care or support resulting from the victim’s untimely death;

In its website, the Mokaram Law Firm says that, besides medical malpractice, wrongful death may also be due to automobile accidents, criminal behavior or workplace accidents. For a wrongful death claim to be filed, however, the following criteria will have to be met:

The death was the direct result of some other person’s negligent or criminal actions; and,
The surviving family has suffered monetary damage.

A wrongful death lawsuit can only be filed by the affected family’s personal representative. The damages that may be considered compensable, the requirements or conditions to be recognized as a qualified plaintiff, and the statutory limit for the filing of the suit, may differ from one state to another. Due to the differences in state requirements, plus the complexity of the tort law, it may be best for the “real parties in interest” to get in touch with a highly- qualified personal injury lawyer.

Read More