Losing a family member is never easy. When someone is killed suddenly as a result of the negligence of someone else, that loss can be even harder to bear. In addition to grief, families are often left with the added stresses of funeral and burial expenses, medical bills, and other debts and legal concerns. Although there is no justice that can bring a family member back, an experienced personal injury and wrongful death attorney can help your family examine potential wrongful death claims and obtain compensation for your family’s losses.
When someone dies as a result of the negligence (wrongdoing or misconduct) of another person or company, the victim's family members may sue for "wrongful death." This is true even in the case of murder or manslaughter. Regardless of the cause, someone found liable for wrongful death may or may not be charged and convicted of a crime associated with that death. A wrongful death may occur due to a wide variety of causes or accidents, including truck accidents, car accidents, airplane accidents, medical malpractice, defective products, workplace accidents, farm equipment, pharmaceuticals, etc., as well as a result of intentional acts of violence and criminal acts like assaults and shootings. The most common causes are motor vehicle accidents, medical malpractice, defective products and workplace accidents.
Motor vehicle travel is the major mode of transportation used day to day in the United States. Unfortunately, motor vehicle accidents are the leading cause of death for Americans age 4 and for every age 11 through 27 (2009 data). According to the National Highway Traffic Safety Administration (“NHTSA”), in 2012 there were 33,561 people killed in over 5,615,000 motor vehicle accidents (based on reports to police). An average of 92 people died each day in motor vehicle accidents in 2012—one every 16 minutes. If a family member was killed in a motor vehicle crash due to the negligence of another, you may be able to file a wrongful death claim against the negligent party.
Medical malpractice is another common cause of wrongful deaths. U.S. Department of Justice statistics estimate that more than 90% of all medical malpractice lawsuits filed are a result of a death or permanent, disabling injury. In the event that a medical provider fails to perform their duties pursuant to the standard of care and a patient dies as a result, the patient’s family may be able to file a wrongful death claim. Not all medical mistakes or poor outcomes are considered malpractice. As a result, you may need an experienced medical malpractice attorney to assist in determining whether or not malpractice has occurred and if it has, whether or not there is a viable claim against the medical practitioner.
Accidents in the workplace can also lead to fatalities and wrongful death claims. Falls, equipment accidents, explosions, burns and exposure to toxic chemicals cause many deaths in the United States each year. Some of the more common workplaces where wrongful deaths occur include manufacturing plants and construction sites, though an accident at any type of workplace could result in death. In Virginia, accidents that occur while the victim is working can be complicated and may require the assistance of an attorney who is experienced with claims for deaths in the workplace.
A claim for wrongful death can only be filed by the personal representative (sometimes referred to as the “administrator”) of the decedent's estate. Claims for personal injury, conscious pain and suffering and medical bills or other costs incurred before the victim’s death are also made by the personal representative. Every state has a civil wrongful death statute (or a set of statutes) which outline the law and procedures that guide wrongful death claims. Any settlement or court award from wrongful death lawsuits are distributed to the statutory beneficiaries, which are determined by Virginia law. Any settlement of such claims must be approved by a judge in Virginia.
Elements of Wrongful Death Claims
Generally, for a wrongful death claim to be successful, it must contain the following elements:
- The death of a human being;
- The death was caused by the negligence of another or another’s intent to cause harm;
- Surviving family members who suffer grief or financial damages as a result of the death; and
- The appointment of a personal representative or administrator for the estate.
Damages in a Wrongful Death Lawsuit
In Virginia, grief or “solatium” damages are the primary measure of damages in a wrongful death case. Financial damages are also available. Financial damages include loss of services, loss of future income, loss of protection, care and assistance, medical bills, funeral and burial expenses. Finally, a monetary award may include interest from the date of the decedent's death.
When evaluation and calculating the value of financial losses, many aspects must be considered, including the age, character and condition of the decedent, his/her earning capacity, life expectancy, health and intelligence, as well as the particular situation of the beneficiaries and what their needs are. The calculation may seem straightforward, but it is not always easy. Most often, the main factor in awarding damages is the decedent's life circumstances at the time of his or her death. For example, when an employed adult with children dies, the major facets of the financial damages are: 1) loss of income, and 2) loss of parental guidance. The decedent's earnings at the time of their passing, the last known earnings if they were not working at the time of death, and potential future earnings may also be considered. The surviving beneficiaries, such as a spouse and children, may get grief damages. The testimony of experts (such as an economist) may be used by the plaintiff to assist in determining the value of financial losses.
Survival Actions for Personal Injury
As mentioned above, beneficiaries may be able to recover damages for personal injury to their loved one. These cases are referred to as "survival actions," since the personal injury case “survives” the individual who was injured. The victim’s personal representative can file such a claim along with the wrongful death suit, for the benefit of the decedent's estate. Damages for a victim’s conscious pain and suffering may be considered in a survival action. The amount of damages appropriate can be based on the victim’s fear of impending death, the amount of time that the victim was conscious and suffering, and the degree of consciousness.
Discussing the Case With an Attorney
If you have lost a loved one due to an accident caused by the negligence or misconduct of another individual or company, you may be entitled to make a claim for wrongful death. If you believe that you may have a valid wrongful death claim, contact the experienced wrongful death attorneys at the Halperin Law Center for a no-cost consultation to discuss the specifics of the case. We cannot bring back your loved ones, but we can be your partner for seeking justice and obtaining financial compensation for a more secure future. Call us at 804-527-0100 or contact us at firstname.lastname@example.org.
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