THE DEATH OF A PERSON DOESN'T END THE RIGHTS OF THE PERSON'S ESTATE OR THEIR FAMILY TO RECOVER FOR THEIR INJURIES AND DEATH
The death of a human being is a serious matter. It is of critical importance to the family effected. If you believe that the death was caused by the intentional or negligent act of someone, it is advisable that you consult with an attorney as soon as possible. To recover for the death of a person, if must generally be shown that:
- The death was caused, in whole or part, by the conduct of defendant;
- The defendant was negligent, or strictly liable, for the person's death;
- There is a surviving spouse, children, beneficiaries or dependents; and
- Monetary damages from the person's death.
WHO HAS A CLAIM FOR WRONGFUL DEATH?
This will depend on the statute language in your state, but generally immediate family members can pursue a wrongful death claim. Minors may require a "guardian ad litem" to represent their interests in court. In Georgia, the estate will also have a claim for the medical expenses and any pre-death pain and suffering.
WHEN MUST THE CLAIM FOR WRONGFUL DEATH BE FILED ?
Every state has its own statute of limitations. A statute of limitations sets the time in which a claim must be filed in court or be lost. In Georgia, the time period is generally two years, although this may vary where a government entity is involved. The time runs from the time of the victim's death, although some states may allow a lawsuit to proceed if the act which caused the death was not discovered until later. The limitations period may run from the time that the heirs reasonably discovered the treating doctor's negligence, rather than the date of the person's death.
WHAT DAMAGES EXIST IN A WRONGFUL DEATH CLAIM ?
The following damages may be recovered in a wrongful death action:
- Immediate expenses associated with the death (medical & funeral):
- Loss of the person's anticipated earnings in the future until time of retirement or death;
- Loss of benefits caused by the person's death (pension, medical coverage, etc.);
- Pain and suffering, or mental anguish to the survivors;
- Loss of care, protection, companionship to the survivors;
- General damages; and
- Punitive damages.
Some damages are not available in all states. Punitive damages may require a higher level of proof.
Claimants may also be entitled to recover interest from the time of death, the time the damages were incurred, or from the filing of the lawsuit. Finally, most of the damages for future loss will be reduced to present value.
WHAT RULES APPLY TO FUTURE DAMAGES?
Many states have adopted life expectancy tables for use in calculating future losses. It is common to take the victim's earnings at the time of their death and calculate the remaining years until retirement or expected death to figure future loss of earnings. Life expectancy table are also used to calculate loss of benefits, such as the amount of pension benefits which would have been available had the victim lived.
Since a settlement of trial verdict is calculated at one time, the amount of damages to the claimants s must include not only damages until the time of settlement or verdict, but also those which reasonably would have been incurred in the future. The law does not wish to pay the claimants more than they are entitled to, however. It is therefore typical to reduce future losses to present value, The amount of future damages will be calculated then reduced to an amount that will equal the full amount if it is conservatively invested. As with life expectancy tables, many states have codified how future damages are reduced to present value.
WHEN ARE PUNITIVE DAMAGES AVAILABLE ?
Punitive damages are not awarded to compensate the claimants. Instead, they punish the defendant. Punitive damages are not recoverable unless it is proven that that the defendant's conduct which caused the victim's death was intentional, malicious, or egregious.
There is currently a movement in many states to limit, restrict, or abolish punitive damages. Again, you should speak with an attorney as your earliest opportunity if you believe that you may have this type of claim.