You have probably heard the term ‘wrongful death,’ particularly if you have lost a loved one in a tragic accident. Unfortunately, many people do not really understand what it means. A wrongful death is when a person dies due to the intentional misconduct or negligence of another person. In legal terms, a wrongful death is a special type of personal injury claim. The big difference legally is that the victim of a wrongful death is not around to file his or her own lawsuit. Instead, the person filing the claim is a personal representative of the estate of the deceased person.
Who can Pursue a Wrongful Death Lawsuit?
In most situations, it is a surviving member of the deceased who files the lawsuit to seek damages. This may be the spouse, children, immediate family members, or a representative of the deceased person’s estate. The person filing the claim is called the plaintiff and the negligent party being sued is called the defendant. In a wrongful death claim, the plaintiff is claiming that the negligence of the defendant resulted in the wrongful death of a person.
Proving Wrongful Death
When a wrongful death lawsuitis filed, there are certain things that must be proven to the court before damages will be awarded. Put simply, the plaintiff must show that the defendant’s negligence resulted in the death of someone. There are three elements that have to be proven in every single negligence case:
- Duty of Care: The plaintiff has to prove to the court that there was a duty of care owed to the deceased person by the defendant. For example, in the example of a motor vehicle accident, a plaintiff has to prove that a defendant had to follow the traffic laws and be careful when driving. In a medical malpractice lawsuit, the plaintiff must prove that there is an established standard of care that a physician must follow.
- Breach of Duty of Care: A breach of the duty of care is simply failing to perform the duty that was owed. The plaintiff in a wrongful death claim must prove that the defendant breached a duty of care. In the case of a car accident, that may have been failing to obey the traffic laws, or in the case of the physician, failing to practice the same standards of care that another physician would have done in the same situation.
- Causation: After the plaintiff establishes that the defendant had a duty of care and breached that duty of care, he or she must also prove that the breach resulted in the damages, or in this case, the wrongful death of the deceased person. In other words, if there was a car accident, the plaintiff must prove that the injuries that resulted in death were caused by the negligence of the defendant rather than an unrelated medical condition.
Contact an Experienced Wrongful Death Attorney Today
While it is not required that you have a wrongful death attorney file a lawsuit for you, such cases can be difficult to prove on your own. That is why it is recommended that you work with an attorney experienced in wrongful death claims. The attorneys at the Law Office of D. Hardison Wood have years of experience helping clients get the compensation they deserve. Contact us today to schedule a consultation.