A claim for wrongful death is made when someone dies as the result of another’s actions. This can be caused by negligence (carelessness), recklessness (more than carelessness), or deliberate acts.
A claim for wrongful death is brought solely for the benefit of the next of kin of the deceased individual, which may include a surviving spouse, children, parents, siblings, and other family members. The damages that can be recovered in this type of claim are limited to what is listed in the Ohio wrongful death statute. These include compensation for the family members’ mental anguish, for lost wages and future earnings, and for funeral and burial expenses. Generally, a wrongful death claim may be brought along with a claim for the deceased persons’ pain and suffering that occurred prior to their death, for which there may be a shorter time limit to file a lawsuit.
Anytime someone's death is caused by a wrongful act, a claim for wrongful death can be made. As a result, these claims can be brought under a number of theories, including medical malpractice, nursing home negligence, product liability, and auto accidents.
It is important for family members of the deceased to have legal assistance when pursuing a wrongful death claim for several reasons, including the following.
First, whenever a person dies it is important that all of the medical records pertaining to the person’s injury and death are obtained and reviewed. Due to federal law (HIPPA) a medical provider, such as a doctor’s office or hospital, must have permission from the patient in order to release his or her medical records. However, when a person has died they are no longer able to give such permission. Therefore, regardless of whether or not the deceased person has a will or any assets when they die, an estate will need to be opened in Probate Court. An estate is a legal entity that is represented by an appointed person (usually a surviving spouse or child) who has authority to file lawsuits, settle debts, and distribute a deceased person’s property, among other acts. In the case of wrongful death, when as estate is opened the person who is appointed to head the estate, called the fiduciary, has the ability to give permission to release the deceased person’s medical records. In addition, when a settlement or jury verdict award is reached, the Probate Court must approve the amount as well as the distribution of the settlement funds to the next of kin.
Second, wrongful death claims arise out of an occurrence that often gives rise to the potential for other legal claims, which may have a very short statute of limitations, or time limit, for filing a lawsuit in court. For example, if the person died from suspected medical negligence, there may be a claim for medical malpractice, which has only a one year time limit. Alternatively, if a person died as the result of a defective product, there may be one or more product liability claims against different manufacturers or designers that need to be located. As a result, it is important to consult with an attorney if you feel your loved one’s death may have been caused by another’s wrongful actions because it will be important to know what types of claims are available.
Third, it is unfortunate, but true, that even in instances where a claim is made for someone’s death, insurance companies have a tendency to undervalue claims when they deal directly with the deceased person’s family rather than with an attorney. As a result, a family may not be fully compensated for their loved one’s death. In addition, legal obligations may arise from a wrongful death claim such as Medicare, Medicaid, and/or health insurance reimbursement (called subrogation), and the family may not be made aware of these obligations by the insurance company, and could, therefore, be putting their settlement funds at risk.
If your loved one has died and you are concerned that it is the result of a wrongful act, please contact us. We would be happy to discuss it with you.