A wrongful death is one of the more tragic causes of action that an attorney handles. A loved one in the prime of life, or even someone elderly who has died from nursing home abuse or any other negligent act has many emotional elements.
A wrongful death claim is based on the death of someone by the negligent or intentional act of another person or company. Each of the 50 states have legislation that determines who can bring a wrongful death claim and what damages may be awarded as well as apportioned.
Death actions, as they are also called, can be the result of auto accidents, a defective product, tainted drug, or by a medical error including wrong diagnosis, errors in surgery, or the breakdown of medical equipment. Depending on the type of case, there may be different standards for determining liability, what standard of proof to apply, and a cap on what damages may be awarded.
In California, there is a two-year statute of limitations for bringing a wrongful death lawsuit, or one-year from the date the negligence is discovered or should have been discovered if it is a a medical malpractice or an asbestos case. These are subject to certain exceptions for suits against municipalities and the ages and capacity of the claimants.
Car Accident Fatalities
All drivers have a duty to exercise ordinary care in operating their auto. This also applies to the conditions under which the car is driven. Even though the speed limit may be 65 mph, you may not exercising ordinary care by driving 65 mph under extremely foggy conditions or when it is snowing or raining heavily.
Many car accidents are caused by intoxicated drivers or those under the influence of illegal or prescription drugs. In these cases, an injured party may be able to claim punitive damages, or exemplary damages, which is designed to punish the driver and to prevent future, similar conduct.
Death by Medical Malpractice
Medical negligence, or malpractice, also causes numerous deaths each year. Physicians are held to the standard of care exercised by competent similar physicians under similar conditions and in the same medical community. For example, a general practitioner (GP) will not be held to the same standard as a neurosurgeon, but the GP does have a duty to refer someone to a specialist if a reasonable diagnosis would have lead a similar GP to do so.
Medical accidents can also occur from faulty equipment or a poorly trained staff. A patient’s medical history must be detailed so that the wrong drugs are not administered or a procedure undertaken that exposes the patient to an unreasonable risk. Not accounting for a patient’s diabetes or interactions with certain drugs can lead to serious consequences such as cardiac arrest, stroke, organ damage, and death.
Damages in a malpractice case are limited in California and in most other states, regardless if a death occurred or not. In California, there is a cap of $250,000 on noneconomic damages, also referred to as pain and suffering or the loss of society, love and affection in a wrongful death case. There is no cap or limit on economic losses, which include medical expenses, funeral and burial expenses, and the loss of income during the working life of the decedent.
To initiate a medical malpractice suit, however, a physician must be given 90-days notice.
Further, most states, including California, require that a medical expert in at least the same medical field as the alleged negligent medical provider, submit a signed affidavit, also referred to as a certificate of merit, attesting to the negligent conduct before the court will allow the suit to proceed.
Product Liability
These cases require proof of negligent design or manufacture of a product that was used in the manner intended and which caused death, either because it was defectively designed or that there was an error in its manufacture. Usually, the injured party must present expert testimony to show that a safer product could have been designed according to the technology that existed at the time of the accident.
In some product liability cases, a product determined to be unreasonably dangerous may come under the concept of strict liability, so that negligence is presumed and an injured victim need only prove the nature and extent of their damages. An example is a death by an animal attack.
Claimants in Wrongful Death
Who can sue in a wrongful death case may depend on the marital status of the claimant, and who are the surviving heirs. Ordinarily, the children of a deceased parent can bring an action as may the parents of a deceased child. In the latter case, parents may not be able to have standing, or the right to sue, if the child was an adult and the parents were not financially dependent on their child, or if they were estranged.
Similarly, if spouses were separated at the time one of them was killed, the survivor’s damages claim may be severely limited.
Generally, an award is apportioned equally among the children and surviving spouse if a parent died. If there are no children of the deceased and no parents, the surviving siblings may be able to bring a lawsuit. In some jurisdictions, an administrator of the decedent’s estate may have to bring the action on behalf of any surviving siblings.
In states that recognize civil unions, there are usually statutes that allow the surviving partner to bring an action as if they were a surviving spouse. In California, the issue of same sex marriage is still in flux, but it appears that at least registered civil union partners have the same rights as married, heterosexual couples.
In cases where a city, town, school district, county or state government is sued for wrongful death, the action must be brought under the state’s tort claim act. In California, for instance, the municipality must have notice of the claim as well as other information within six months of the accident date.
The government entity must accept or deny the claim within 45 days or it is deemed denies if there is no response after 45 days. If denied, the claimant must file a suit within six months.

