Law & Society

The death of a loved one is always a trying and traumatic time. The pain is even greater however, when the death is preventable. It is reasonable for surviving family members to ask themselves questions about wrongful death claims if they suspect something could have been done.

What Is a Wrongful Death Claim?
Historically, tort law, which is primarily based on English common law, had no provisions for collecting damages for an injury if the claimant died. According to common law, the claim died with the claimant. Family members of the decedent could not collect damages. To address this legally, states began adopting laws that would address wrongful death, the primary tenet of which is that the life that was ended was cut short, resulting in financial loss.
There are four components to a wrongful death claim:
• The death must have resulted from an injury caused by the defendant
• The defendant was either strictly liable of negligent in the death
• The decedent left surviving dependents
• Real monetary losses are suffered by the dependents

If one or more elements are missing, there can be no wrongful death case. For example, if a child is killed in an auto accident, a wrongful death claim might not be possible since the child was probably not supporting the family financially.

Who is Responsible for a Wrongful Death?
There are many types of accidents that occur where a family may file a wrongful death claim. In most cases, the party responsible for the death must meat the criteria above. Defendants may be found responsible for the death of the victim in any of the following situations:
• Vehicle accident
• Medical malpractice
• Defective product
• Construction accident

In some cases, there may be more than one party who can be found negligent or strictly liable for damages. For example, in a trucking accident, the trucking company may not only include the driver of the vehicle, but possibly the trucking company itself, if it is determined, their negligence in adequately training the driver was determined to be a factor in the case.

How is Compensation Determined?
Most states have adopted life expectancy tables to calculate how much compensatory damages can be claimed in a wrongful death lawsuit. By calculating the victims earnings at the time of death and up to their age of retirement, they can get a sense of what the victims earnings may have been had they lived. These calculations usually also take pensions and medical benefits into consideration. The future losses are often reduced to present value in an attempt to ensure that the victim's family is not overcompensated.

Damages may include:
• Lost wages
• Mental anguish
• Pain and suffering
• Medical expenses
• Loss of companionship
• Punitive damages

Some states also cap the amount of punitive damages that may be incurred. Punitive damages are meant to punish the responsible party for the death of the victim.

The wrongful act may be intentional, such as an intentional homicide or murder. More commonly, it is caused by the negligent act of another. The heirs of the person killed wrongfully have a right to file a civil action for monetary damages.

Many thousands of people are killed due to the wrongful act of another every year. According to the National Highway Transportation Authority, more than 30,000 people are killed in motor vehicle accidents. By some estimates, 98.000 to 195,000 die due to medical malpractice annually.

Workplace accidents, unsafe premises and unsafe products may kill thousands more annually.

Wrongful death actions

When a person has been killed due to the wrongful actions of another, the heirs of the decedent have a right to file a wrongful death action in an appropriate court. If an estate has been opened for the decedent, the personal representative of the estate, appointed by the court, will file the lawsuit.

If no estate has been opened, some states allow the lawsuit to be brought by the heirs at law. If dependents of the decedent, they may be entitled to lost income of the decedent, loss of love and society, medical expenses incurred and other damages.

Every state will have statute of limitations, or a legal deadline in which a lawsuit must be filed. In Indiana, the typical statute of limitations is 2 years from the date of death. An experienced Indiana wrongful death attorney should be consulted at the earliest opportunity to determine the specific statute of limitations.

Burden of Proof in a Wrongful Death Action

Whether a personal representative of an estate or the heirs at law bring a lawsuit, they will have to burden to prove that the death of the decedent was caused due to the wrongful act of another. They will be required to show that the act causing the death was either intentional or negligent. To show negligence, they must show the party causing the death failed to use reasonable care under the circumstances.

In most cases, an autopsy must be performed to determine the exact cause of death and to eliminate death by natural causes. An autopsy is especially important in cases of medical malpractice or death caused by an unsafe product. The decision to have an autopsy is usually a difficult decision to make for a grieving family.

In addition to an autopsy, evidence of the surrounding circumstances at the time of death is also vitally important. The location and statements of witnesses, forensic evidence and medical records need to be compiled at the earliest opportunity.

An experienced wrongful death attorney can investigate the circumstances surrounding the death to determine whether the death was due to a wrongful act, and whether a lawsuit can be filed.