Wrongful Death Lawsuit Loans

The resulting death of a person due to the willful or negligent act of another can serve as a basis for a civil suit. The family of the decedent, another term for the deceased, can bring a charge in a civil court. 

Wrongful death claims are focused on getting monetary relief for the recipients. They seek compensation for the loss of support, medical and funeral expenses, and loss of consortium, among others. 

The Cornell Law School defines loss of consortium as the “deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor.” It includes affection and sexual relations. For example, a spouse of a person injured or killed in a car accident can file for this claim. 

In some cases, it is not always easy to prove the liability of a defendant in a wrongful death claim. Understanding the filing process, its rules, its challenges, and other related matters can help you navigate the situation more strategically, if not successfully.

Learn more about time limits for filing, criteria for plaintiffs, and specific cases in the sections that follow. It is also important to find and work together with a lawyer specializing wrongful death claims, as well as a company that specializes in wrongful death lawsuit funding, like us.

How to File a Wrongful Death Lawsuit

First, you need to know if you’re the person authorized by your state to file a wrongful death claim. Some states allow the decedent’s surviving spouse, children, parents, siblings, or other relatives to do the filing. Others let only the executor of the decedent’s estate.

Another thing to check is whether the statute of limitations for this type of claim has not elapsed. The statute of limitations refers to the deadline by which you can still bring a charge against the individual allegedly liable for the death of a loved one. This deadline may also affect your wrongful death lawsuit funding application.

Different states vary in their prescribed time limits. For instance, Montana will recognize a claim if filed within three years of the time of death. Florida restricts filing to two years.

There are situations in which the time limit starts running from the discovery of harm instead of the date of death. This is called the “discovery rule,” which helps determine if the decedent had actual knowledge of the cause of their injury or illness prior to death.

Statute of Limitations

Per State

Source: FindLaw

Next comes the filing of a complaint or petition, in which you lay down the legal basis for your case. A summons will also be sent to the defendant, notifying them of the lawsuit and its details.

A procedure called service of process will then be conducted to provide the defendant with the documents relevant to the claim.

All of these make up a process that can take many years. Going at it yourself can be a challenge, especially if you have no legal experience. Hiring a wrongful death attorney on a contingency agreement is your best option while starting out, and wrongful death lawsuit funding can help you cover living expenses until you receive your settlement. 

How to Calculate for Damages in a Wrongful Death Claim

Usually, the monetary award in a wrongful death claim is measured by the earning potential of the victim or deceased when they were alive. It could also be based on the value assigned to pain and suffering they went through between incurring an injury or illness due to a negligent act and death.

Assessing and quantifying the damage is the work of jurors. It may be challenging to put a price on human life, but guidelines are given to avoid guesswork.

Economic Damages

This aspect largely depends on the economic situation of the decedent at the time of death. Here are some of the factors:

• The decedent’s age and health at the time of death;
• The decedent’s future earning capacity alongside income at the time of death; if unemployed, the income in the most recent job;
• The decedent’s amount and type of education, as well as training and specialization;
• The medical bills incurred due to the injury or illness caused by the negligent act; 
• Funeral expenses; and
• Loss of future benefits, such as pension and insurance.

Non-Economic Damages

The other basis is the loss of consortium, which deprives the next of kin, like a spouse or children, of the love and companionship of the person who passed away.

The factors considered here are as follows:

• The perceived value of the life, which is subjective and determined by the judge or jury;
• The liable party’s identity; and
• Any loss of love, companionship, affection, comfort, protection, or support suffered by the decedent’s family or loved ones.

Children and the Elderly 

With the computation method set above, measuring the future financial value for a child or elderly decedent can be challenging. Thus, courts and juries have the following principles to observe:

Loss of a Child

We won’t hide the fact that the amount the parents can recover from the death of their child can be small. According to Thomson Reuters’ FindLaw, the financial losses can be speculated based on the following factors:

• The age, sex, life expectancy, work expectancy, state of health, and habits of the child;
• The child’s earning potential;
• The relationship of the decedent to those claiming a pecuniary loss; and
• The health, age, and circumstances of those claiming pecuniary losses.

The accurate speculation of a child’s earning potential, for example, depends on the age of the child at the time of death. It can be harder to assess the earning potential of an 18-year-old with excellent scholastic records and enrollment in a top university program compared to that of an 8-year-old with similarly high achievements in school.

Loss of a Fetus

In many states, the death of an unborn fetus is not actionable. However, some states may allow it. Seek advice from a local attorney with knowledge of this particular situation if you want to move forward with a case.

Loss of an Elderly Person

As with children, the recovery over the death of an elderly individual may be limited. Some scholars argue that the undervaluation of the elderly’s lives in wrongful death claims stems from a system that operates by a Valuation by Human Capital approach.

Some of the factors that lead to a small award of damages include:

• The assumption that people of retirement age had no significant earning potential; and
• The elderly decedent’s children are likely adults with decreased needs for their parents’ guidance and support.

Drowning

While it’s not always the case, there are instances where another party is legally liable for the drowning of a person. When this happens, the next of kin can file a claim over the wrongful death of a family member or loved one.

Water Sports

Such activities can be grounds for claims if someone else caused the drowning of an individual. For example, a person swimming nearby drowned after getting hit by a boat or jet ski. The one operating the watercraft was negligent or reckless at the time. And they should be held accountable for their action.

Swimming Pool

Owners of public pools, spas, and swimming holes may be sued if a guest drowned because of the negligent or reckless behavior of a lifeguard or the lack of maintenance in the area. With regard to maintenance, they can be liable if they had knowledge of the item that needed fixing but failed to revert or remedy it, causing someone to drown.

Physician-Patient Privilege

The physician-patient privilege is a right of privacy that prevents the sharing of a patient’s medical records without their consent. The privilege does not automatically go away when the patient dies.

However, once the plaintiff brings a wrongful death charge, as well as a personal injury or negligence claim, the privilege is waived. Some believe this should not be the case. But others support the idea that the privilege should not be extended after the patient’s death if the records can help a person or entity in defending themselves.

There are states that require the surviving family member or personal representative to waive the privilege. The waiver of privilege will now allow attorneys to have access to private medical records, which some medical practitioners oppose. But legal professionals should be careful to avoid tainting the memory of the deceased.

Specific Cases

Single Mom in Portland

In Portland, Oregon, a 30-year-old single mom suffered shoulder injuries in a car crash. A vehicle hit the one she was riding as a passenger. Her condition required surgery and resulted in chronic pain.

To deal with the persistence of pain, she became dependent on prescription pain medication. It went on for almost a year until she accidentally overdosed on her pills alongside alcohol. 

A wrongful death claim was filed against the driver who had caused the injury, alleging that the defendant’s negligent driving also played a substantial role in the woman’s death. The plaintiff successfully showed that it was the auto accident that caused the injury, the injury that caused ongoing pain, and the ongoing pain that caused the reliance on pain medication. 

In other words, it would not have come to this conclusion had the injury-causing crash not happened.

The case settled for the limit of the defendant’s car insurance policy.

O.J. Simpson

One of the widely known and highly publicized criminal cases involved O.J. Simpson. The football star was charged with first-degree murder each for the death of his ex-wife, Nicole Brown, and Ronald Goldman.

In 1995, Simpson was acquitted and could no longer be tried for the same charges again under the U.S. double jeopardy laws.

However, the Goldman family filed a wrongful death suit against Simpson in 1997, blaming him for the deaths of Brown and Goldman. The civil litigation included the defendant taking the stand, which he did not do during his criminal trial. 

A month after the filing, a jury found Simpson responsible for the two deaths, awarding $33.5 million to each of the two families. The civil lawsuit required only a preponderance of evidence – which allows the burden of proof to be met if there’s a “greater than 50% chance that the claim is true” – while the criminal case failed to find him guilty beyond a reasonable doubt.