Experiencing the death of a loved one is tragic for family members. The loss of a loved one is even more tragic when that death occurs because of a wrongful death situation. What happens when you believe that your spouse, one of your parents, a sibling or your own child likely died because of a wrongful death? How do you proceed and who do you turn to for help after the death of a loved one?
You do not have to go through the grieving process alone when you have an attorney on your side who may be able to help you hold the right parties responsible for your loved one's death and who can help you to recover damages in your case.
Important Steps to Take Before Filing a Wrongful Death Lawsuit
There are several steps for you or other family members to take when the death of a loved one occurs because of a wrongful death. The first step is to learn what exactly constitutes a wrongful death, which varies from one state to another state.
The next step is to learn whether the death of your family member does indeed constitute a wrongful death under the state law or statutes. Are you the person who gets the money from a wrongful death lawsuit? Do you have the right to file a wrongful death lawsuit?
Did you know that it is possible to recover punitive damages in a wrongful death lawsuit? Do you know the laws regarding how to include punitive damages in a lawsuit, and how much money to claim in the action? The possibility of recovering punitive damages against the responsible party is another reason that you should trust in the knowledge and experience of an attorney who knows and understands the legal statutes and how to proceed with filing a wrongful death lawsuit.
Turn to a law firm who has the experience to investigate the death, to determine who is responsible and which party or parties may be sued in a wrongful death lawsuit. Let an attorney who will help your family understand the process of filing a lawsuit and who will work towards achieving the highest potential settlement or go to court, if necessary, guide you through the wrongful death lawsuit process.
What is the Definition of Wrongful Death in North Carolina?
The laws related to wrongful death vary at least somewhat among the various states. The laws related to wrongful death are found in the General Statutes Chapter 28A – Administration of Decedents' Estates.
Chapter 28A-18-2 explains that a wrongful death occurs when a person dies and the person's death is the "result of a wrongful act, neglect or default of another," person or an entity. The wrongful death is such that it would be a personal injury case if the deceased person had lived and would "have entitled the injured person to an action for damages."
It is important to understand that a wrongful death lawsuit is a civil case with the liability of the defendant or defendants limited solely to financial compensation. It is not an action that is heard in criminal court, where a defendant in a murder case, or even in the case of negligent homicide, can face imprisonment or an order to pay fines.
What is Considered Wrongful Death?
Perhaps you think of wrongful death as including only situations like if an intoxicated driver or a driver talking on their phone runs a red light and kills an innocent driver or their passengers. There are actually several potential contributing factors and actual causes of wrongful death.
Work-related wrongful deaths
One common cause of wrongful deaths in many areas is work-related deaths. The number of work-related wrongful deaths seems to have been increasing in North Carolina in recent years. The number of fatal occupational deaths jumped from 2018 to 2019. There were 178 fatal work deaths in 2018 and 186 fatal deaths at work in 2019.
The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) indicates that many work-related deaths in 2021 resulted in citations being issued in relation to the fatality. Many citations and causes of work-related deaths include incidents such as workers being struck when heavy equipment or materials fall on them, workers falling off rooftops or from work vehicles, or crush injuries that occur on the job. Sources indicate that in 2020, nearly 60 percent of all workplace-related deaths in the state were caused by a transportation incident.
Did you know that the employer can be sued if an individual working for the employer runs a red light or is speeding and causes a motor vehicle crash or if the driver commits other acts or fails to act and causes the death of another person? You have to make sure that you file the wrongful death lawsuit against the proper party, so make sure that you consult with an experienced attorney who can help you get the compensation that you deserve in the wrongful death action.
Wrongful Deaths Caused by Medication Errors and Faulty Medical Equipment
Wrongful death lawsuits may be filed if a family member believes that their loved one's death occurred because of medical errors or medication errors, or because of faulty medical equipment. The Academy of Managed Care Pharmacy (AMCP) revealed that medication errors harm a minimum of 1.5 million people every year, and that the morbidity and mortality costs are an estimated $77 billion each year. So, what constitutes medication errors that may lead to the wrongful death of an individual?
The approved working definition, according to the National Coordinating Council for Medication and Prevention, is a "preventable event that may cause or lead to inappropriate medication use or patient harm, while the medication is in the control of the health care professional, patient, or consumer."
Medication errors can occur at any time when a medical professional administers medication to a person or when there is incorrect drug distribution, mistakes in product labeling, mistakes that occur when the wrong drug or dose is selected, or when there is insufficient or missing information.
A physician may order the wrong drug or a nurse may administer the wrong dosage of a drug, or the hospital pharmacy may dispense the wrong drug. Another example occurs when a particular drug is prescribed and administered even when the patient's chart indicates that the patient is allergic to the drug, or it interacts with other medications that the patient takes.
A lawyer with experience in wrongful death lawsuits because of medication errors can help you pursue legal action against the responsible party.
Medical errors occur because of a variety of negligent actions or lack of actions. An article titled, "Your Health Care May Kill You: Medical Errors," that is published on the National Institute of Health (NIH) website points to the fact that there may be as many as 251,000 deaths in the U.S. every year and that the death rate in the U.S. from medical errors exceeds the death rate in Canada, the United Kingdom, Germany and several other countries.
The authors explain that only an estimated 10 percent of deaths caused by medical error are actually reported. Evidence shows that some healthcare professionals may neglect to report a medical error because of fear of punishment. Regardless of this fear, they have an obligation to report any mistakes that they make, including when it leads to the wrongful death of a patient.
Medical Malpractice and Wrongful Deaths
Medical malpractice occurs when a medical professional provides substandard treatment, or neglects to provide the patient with appropriate treatment, or when the health care professional fails to take appropriate action that causes harm or injury or death to a patient. It is important to note that the medical malpractice does not have to be against a single physician. The malpractice may be committed by a nurse or nurse practitioner, a therapist, a hospital or medical facility or any other medical provider.
Some examples of medical malpractice may include failure to diagnose, misdiagnosis, leaving an object in the body after surgery, premature discharge, failure to order appropriate diagnostic tests or following up on the results of the tests, infections potentially acquired in the hospital that led to the patient's death. Talk to an attorney who has expertise in wrongful death lawsuits, including for medical malpractice, if you believe that your loved one died as a result of medical malpractice.
Do not let the wrongful death of your loved one, who died because of a medical error, go unnoticed and unreported to the right authorities. Turn to an attorney who has the expertise to pursue a wrongful death claim and pursue the highest potential settlement. We will not back down, and if a settlement cannot be reached, we are willing to go to trial and fight so that you get the results that you deserve after losing your loved one.
Other Causes of Wrongful Death
Wrongful deaths may occur because of a motor vehicle crash, an injury that occurs during negligent maintenance of property, product liability that occurs because of the negligent design or the negligent manufacture of products, or from negligent horseplay that results in a person's death.
Do you wonder how negligent management of property may result in a wrongful death lawsuit? A landlord who fails to repair a stairway is one example. If a tenant falls and the fall results in the person's death because of the faulty stairway, this may result in a successful wrongful death claim.
A company that designs a product that is unsafe and causes the death of another or a company who manufactures a faulty product that causes someone to die are potentially liable in a wrongful death lawsuit.
Did your loved one die because a co-worker or friend shoved them and your loved one hit their head and experienced a fatal brain bleed or other fatal injury? Do not assume that the other party is not liable in a wrongful death lawsuit just because there was no intent to cause the death. There does not have to be intent to prove a wrongful death case. Speak to a knowledgeable attorney who has years of experience in handling wrongful death lawsuits.
Types of Recoverable Damages in a Wrongful Death Claim
You likely wonder what type of damages that you may be able to recover under wrongful death laws. The potential damages that are recoverable are stated in Chapter 28A-18-2(a)(b). The statutes explain that when the wrongful death of an individual is caused by another, there are recoverable damages. The specific damages include:
(1) Expenses for care, treatment and hospitalization incident to the injury resulting in death:
(2) Compensation for the pain and suffering of the defendant;
(3) The reasonable funeral expenses of the defendant;
Additional recoverable damages include:
(4) The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected;
- Net income of the decedent
- Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered
- Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered;
(5) Such punitive damages as the decedent could have recovered pursuant to Chapter 1D of the General Statutes had the decedent survived, and punitive damages for wrongfully causing the death of the decedent through malice or willful or wanton conduct, as defined in G.S. 1D-5.
Section Chapter 28A-18-2(b) (6) also indicates that there are potential nominal fees that the jury may include in the recovery awarded, and that all evidence that may establish any of the elements of damages under the law is admissible to the court for consideration for damages in a wrongful death lawsuit.
Remember that the survival action and the wrongful death action used to be combined, but are now combined into just one cause of action. The survival action concerns the claim that the deceased loved one possessed prior to their death, such as their pre-death pain and suffering, medical bills, and the pre-death lost income. The wrongful death action covers losses of the family because of the death of their loved one caused by the default, negligence, or wrongful act of another party. Damages include the loss of economic support, the pain and suffering over the loss of a family member, and reasonable funeral costs and expenses.
Your attorney will understand that these things may be difficult at this painful time and will take the lead and help you so that you do not bear this burden alone. The attorney at Sumwalt Anderson Law Firm will keep you informed of any additional information that you need to know, and will make sure that you understand terms related to the wrongful death action, and will keep you informed of the progress of your case.
How Do Family Members File a Wrongful Death Claim and Who Gets the Money?
Family members, unfortunately, sometimes squabble over who should get what amount of money from an award to a deceased loved one from a successful wrongful death lawsuit. The state statutes avoid this family issue through the Intestate Succession Act, which is found in the General Statutes, Chapter 29. This section sets forth the distribution to survivors.
Family members need to understand that the Intestate Succession Act applies whether or not their deceased family member left a will or did not have a will. This means that even if a loved one had a strained relationship, they may be awarded a portion of the proceeds of a wrongful death lawsuit. Similarly, if a family member assumes that they are the only person named in a will, the person will still only share in the wrongful death lawsuit award the amount designated by the distribution to survivors that is set forth in the Intestate Succession Act.
The act includes the amount of award distributed to the surviving spouse if there is one, and any award to children of the decedent, an award to the siblings, parents, grandparents, grandchildren, or other individuals described in the Intestate Succession Act.
The understanding attorneys at Sumwalt Anderson can help you and your loved ones understand the Intestate Succession Act and can answer your questions about wrongful death lawsuits.
Chapter 28A-18-2 covers who may file a lawsuit for a wrongful death action. The statute indicates that only a person who is designated as the personal representative of the deceased person may file a wrongful death claim. Although multiple family members may feel that they have an equal right to receive a payout in a wrongful death lawsuit, the personal representative represents all family members.
The person who must bring the wrongful death lawsuit is typically the executor or the administrator of the decedent's estate. The attorney or law firm team serves as the legal representative to the personal representative of the family.
It is important to also understand that there is a statute of limitations included in the statutes for each state. The person who is eligible to file a wrongful death lawsuit as the personal representative of the decedent in North Carolina must file the lawsuit within the two-year statute of limitations. The statute of limitations starts with the date of the person's death.
If you do not file the lawsuit within that two-year limit, you likely cannot recover on any potential claim, and may even have the lawsuit dismissed for failure to file in a timely manner. Make sure that you contact the Sumwalt Anderson Law Firm as soon as possible after the wrongful death of your loved one so that we can get the process started for your family. The caring attorneys and staff understand that you are grieving and understand that this is an emotional time for you. We will work diligently to get the best possible outcome in your case.
How Much Will I Receive in a Wrongful Death Claim?
Another question that family members likely want to know is how much they can receive in a wrongful death lawsuit. Your attorney works to prove the case, to prove that the death of the individual did indeed occur because of wrongful death caused by the negligence or fault of another party. The attorney for the other side often negotiates with the attorney serving as the legal representative of the family so that there is a settlement without having to go to trial.
A settlement does not always occur, which means that the case will likely proceed to trial. Your attorney is not able to provide you with an exact amount that you will receive, whether the case is settled or if it goes to court.
Details are different in each case, along with other factors that may help to determine the monetary amount of each wrongful death lawsuit. If your loved one dies in a work-related incident and another person dies in the same work-related incident, there are still some unique facts associated with each case. This can potentially lead to different outcomes or a different amount of award provided for the recovery of damages. Your lawyer can advise you about the amount of the settlement or the amount that may be awarded by the court that is specific to your case.
Keep in mind that certain costs are taken from the amount of the award prior to the family representative receiving the money from the wrongful death. These expenses are explained in § 28A-18-2, and include that "The personal representative or collector of the decedent who pursues an action under this section may pay from the assets of the estate the reasonable and necessary expenses." The statute is clear that this does not include attorney fees from pursuing the action against the responsible party.
Family members are likely relieved that the amount recovered in the lawsuit is not to be used for the payment of debts, except for attorney fees.
Why Do I Need an Attorney with Experience in Wrongful Death Claims?
Contact the caring attorneys at the Sumwalt Law Firm and experience the benefit of speaking to experienced lawyers and staff who understand how a wrongful death lawsuit claim works, and how to work to get the best possible outcome for your family.
We welcome the opportunity talk to you and to help you determine if you have a wrongful death lawsuit case. Contact us today.
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