Although there is nothing that can replace your loved one, or make up for the sense of loss felt by family and friends of the victim, there may be some compensation available for the financial losses. Filing a wrongful death lawsuit can be the first step to obtaining that recovery. However, wrongful death can be a complicated area of the law to navigate, so knowing the answers to a few of the most frequently asked questions in that area can be very helpful.
Q. What is involved in a Wrongful Death Lawsuit?
A. Wrongful death is a complex area of law that involves both the legal elements of typical personal injury claim, as well as, certain state-specific limitations and requirements. Therefore, it is critical that you select a lawyer with sufficient experience and expertise in this area of the law. It is also vital that you act quickly because all wrongful death lawsuits are subject to statutes of limitations, which is the time limit for filing your claims in court.
Q. What are some of the most common types of wrongful death cases?
A. Wrongful death claims, that is claims that arise due to someone else’s negligence or wrongdoing, are most often brought to court when a person is killed in an auto accident, been exposed to toxic poisoning, defective drugs or defective products. If you can find a wrongful death attorney that has substantial experience in the area of personal injury that is involved, your changes of a successful recovery will likely increase.
Q. What elements are needed to prove a negligence claim?
A. Every legal claims has specific elements that must be proven if you want a chance at winning. A negligence claim has three basic elements. First, you must establish there was a duty of care that was owed to the person who was injured. Then you must show that there was a breach of that duty (or that it was not fulfilled) and that breach caused the injuries claimed. The injuries must always be proven in any lawsuit. In wrongful death cases, however, the decedent’s death is an automatic form of damages for which recovery is available, if the other elements are established. Survivors of the deceased may also seek compensation for their own losses related to the untimely death of their loved one.
Q. How is proving medical negligence different?
A. The requirements for establishing medical negligence are a little more specific than a basic negligence case. To show medical negligence in a wrongful death case, it must be shown that the person’s death was caused by a negligent act or omission by a doctor or other health care professional. Those health care professionals can include surgeons, nurses, physician’s assistants, dentists, pharmacists, pathologists, toxicologists, pharmacologists, technicians, nursing homes, hospitals, medical practices, urgent care clinics, emergency rooms and many others.
Q. What is the “standard of care?”
A. The phrase “standard of care” in the medical setting is determined by what a competent physician would do under similar circumstances. Every state has their own specific statement of that standard for all physicians practicing within their state. The standard of care is used as a guide for determining liability. If a physician does not follow the applicable standards for some reason, there may be a medical negligence or malpractice case.
Q. Who can bring a wrongful death claim in court?
A. The personal representative appointed to handle the estate of the deceased person is required to file the wrongful death claim in Arkansas. If no such person has been appointed, then the claim can be filed by the deceased’s legal heirs, which would typically include the “surviving spouse, children, parents, or siblings; individuals standing “in loco parentis,”(in place of the parent) and individuals to whom the deceased stood in loco parentis.”
In Missouri, on the other hand, the surviving spouse, children, or grandchildren have first priority to bring a wrongful death claim. The parents of the deceased would be next in line. Usually, when the claim involves the death of a child (minor), the parents will file the wrongful death suit. If none of those individuals have survived the deceased, then a surviving sibling can bring the claim.
Q. What can you recover in wrongful death cases?
A. In both Arkansas and Missouri, the survivors of the deceased are allowed to seek damages on behalf of the deceased, as well as compensation for their own personal losses, as a result of their loved one’s untimely death. This compensation received can help to alleviate medical bills and other expenses that may have been incurred, such as funeral expenses. This is not true in every state. For example, in Alabama damages in wrongful death cases are purely punitive in nature.
Q. Are there deadlines for filing wrongful death claims?
A. Like all other legal claims, there is a deadline for filing a wrongful death lawsuit, which differs from state to state. This deadline or time limit is common referred to as the “statute of limitations.” In both Missouri and Arkansas, the statute of limitations for a wrongful death action is three (3) years.
Q. Do I need a personal injury attorney to help in proving wrongful death?
A. When you file a wrongful death lawsuit there are specific elements of proof that must be shown to the court before damages will be awarded. At a minimum, the representative of the deceased must show that the person who caused the decedent’s death was negligent, and that negligence actually caused the decedent’s death. But, proving negligence and causation is not always a simple task.
If you have questions regarding wrongful death, or any other personal injury concerns in Arkansas or Missouri, please contact the Cottrell Law Office for a consultation, either online or by calling us as (800) 364-8305.