Obviously, there will come a time for all of us to die. But for some of us, this may happen before our time is up, and it can be due to somebody else’s fault. Losing someone you care about in that way is tragic. No money in the world can bring your loved one back but if there is a case of “wrongful death,” then you may be entitled to compensation. At the very least, this can help you compensate for any lost earnings, for medical and funeral bills and more.
Your loved one may have died as a result of a vehicle accident, or perhaps he died because he did not receive the correct medical treatment. Either way, you may be entitled to some form of compensation. One form of wrongful death can be medical malpractice. However, there are differences between the two. Having an understanding of these differences can be very useful in terms of building the right expectations for your case. Indeed, the two are not necessarily mutually exclusive.
Wrongful Death Case
In a wrongful death case, compensation is sought by the family or heirs of the deceased.
They will imply that their loved one died due to the negligent behavior of someone else. The circumstances of these types of cases do not have to have anything to do with the field of medicine. For instance:
- Someone could have been killed by a drunk driver in a motor vehicle accident.
- Someone could be assaulted and died as a result of the injuries.
- Someone could unknowingly eat tainted or spoiled food and die as a result of poisoning.
The legal definition of wrongful death describes it as taking someone’s life due to negligent or willful behavior by someone else. It is an area of tort law and each state has statutes to govern it. Generally, the statute will determine who is able to sue and what type of damage limitation is in place. It is a civil matter, which means that if someone is acquitted in a murder case, he may still be sued for wrongful death in a civil case. Perhaps the most famous example of this is the OJ Simpson trial.
A wrongful death can be determined after any act that leads to an injury and subsequent death, whether this action was intentional or unintentional. In cases of an unborn fetus, wrongful death cannot apply, as legal status only starts to exist on birth.
Each state determines who is able to sue in a wrongful death case. Generally, spouses, next of kin and children can do so. Some states allow separated spouses to bring action, although not if the separation was due to failure to provide support or desertion. In a number of states, children can only sue for the death of their parent if they were underage.
It is also important to understand that family immunity is in place in most states. This means two family members may not sue each other for wrongful death damages in most cases, although exceptions do exist. Additionally, only those states that have waived their Sovereign Immunity can be sued for wrongful deaths. Sovereign Immunity stops lawsuits against the government. However, many states have relinquished their Sovereign Immunity since the 1960s. In those cases, the notice requirement tends to be incredibly strict, with some having notice periods of as little as 30 days. A very famous example of a wrongful death suit against the government followed the standoff at Waco, Texas. The Branch Davidians sued for $675 million in damages in 1999, claiming that the state had used excessive force, leading to the death of all those inside. However, the judge ruled that the government was not liable in the case.
In wrongful death cases, the plaintiff must prove that the defendant’s actions directly caused the injuries and death of the deceased. Hence, the series of events and cause and effect must be completely clear. This makes it very difficult to sue under wrongful death in any case that is not clear cut.
In terms of damages, each state will have statutes in place to limit how much can be recovered in damages. Usually, compensatory damages are awarded, which is a restitution for lost monies as a result of the death. Often, plaintiffs also try to claim back money spent on funeral expenses and medical bills. Finally, a sum may be awarded for grief or loss of companionship compensation. In particularly heinous or reckless cases, punitive damages may also be awarded. This is a form of punishment towards the defendant.
Finally, various limitations are in place in the different states in terms of how much can be recovered. Other states do not have limits in place. Due to international treaties, there are limits that an international airline can be liable for. Similarly, workers’ compensation laws limit the liability of an employer.
In many cases, filing a wrongful death suit may be feasible. Determining whether there is a case to be made or not should be decided by a qualified attorney. It is therefore very important to contact a lawyer as soon as possible if you believe someone you care about has died as a result of wrongful death.
Medical Malpractice Negligence
Medical malpractice is different firstly because it does not have to result in a fatality. The focus in a malpractice suit is the negligence of a medical professional. It has to be demonstrated that the behavior caused harm to the patient. In most cases, compensation is awarded in order to cover subsequent medical bills. Additionally, if the malpractice caused loss of earnings, temporarily or permanently, compensation can be sought for this as well. A number of situations could be a cause for a medical malpractice suit.
- If a patient in a nursing home is mistreated by the members of staff.
- If a hospital patient does not receive the care they are entitled to, causing a negative effect on their health or recovery.
- If a patient dies as a result of medical negligence, including incompetent behavior or neglect.
A number of characteristics have to be present in order for a medical malpractice case to be present. These include:
- Failure to deliver a good standard of care, with standards set in each state that medical professionals should adhere to. These standards are all recognized. Patients are within their right to expect these standards of care and violation of these rights could constitute negligence.
- An injury was caused by negligence. If medical professionals acted negligently, but this did not cause any injury or harm, they cannot be held negligent. The plaintiff has to determine that the injury would not have happened should the medical professional not have been negligent. Being unhappy with the outcome of a certain type of treatment, for instance, is not negligence. Actual injury or harm must have had occurred, and it must have been caused by negligence. Those two factors must be present.
- The injury must have severely damaging consequences. Considerable damages must be present in order for a case to be taken on, mainly because suing a medical facility is very expensive. Hence, the plaintiff will have to demonstrate enduring hardship, suffering, loss of income, constant pain or disability before a case will be taken on. With minor injuries, the suit is likely to cost more than awarded damages, which is why lawyers will usually refuse the case.
- Informed consent must not have been present. If the patient did not provide the medical professional with an informed consent and the procedure was completed properly, a case for medical malpractice may still be present.
The plaintiff may be awarded compensatory and punitive damages in each of these cases.
In these cases, there may be a case for medical negligence. Again, it is very important to seek legal advice as soon as possible. Medical negligence is often very hard to prove, because it has to be determined that a member of medical staff actually acted negligently, which goes above and beyond the possibility of human error.
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