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How Do You Prove Wrongful Death?

If a loved one passes away because of negligence on behalf of another person or entity, it may be possible for a surviving family member to take legal action. In some cases, this may result in a settlement that is negotiated outside of court or an award that is granted by a jury after a formal trial. Let’s start with the elements of a wrongful death case and what a person may be entitled to if the claim is successful.

Elements Of a Wrongful Death Claim

Death of a Human Being

This portion of the claim is fairly straightforward. It may be possible to prove that a person died by examining medical records or by pointing to an obituary. Those who were at the funeral may also be able to establish that an individual passed away.

Caused by Another’s Negligence or Intent to Cause Harm

Negligence is generally defined as a lack of reasonable care given to a person. In other words, a person died because someone else took actions that a reasonable person knew or should have known to be dangerous.

Surviving Family Member Who Suffers Monetary Damages

If a parent passes away, it could leave minor children with no one to provide financially for them. If a husband or wife was the primary breadwinner for a family, the other spouse may now be unable to afford a mortgage or otherwise provide for a minor child.

Appointment of a Representative for the Deceased’s Estate

To pursue a wrongful death suit, there must generally be a representative of the deceased’s estate. In New York, it may be possible for one to name such a person or entity in his or her will. It may also be the case that state law determines who the representative may be.


There are many types of damages that may be awarded in a wrongful death case. For instance, actual damages, such as the cost of medical bills or property damage prior to death, may be collected by a surviving family member. Final expenses, such as paying off credit card debt or paying for a funeral, may also be awarded in a wrongful death case.

The surviving family members may be entitled to compensation for the loss of a relationship with a loved one. Furthermore, they may be entitled to the loss of income caused by the passing of a loved one. This may include both lost wages and lost future earnings because of wrongful death. However, it is important to point out that an award for future earnings may be less than what a person may actually be expected to earn to account for inflation.

Punitive damages may be part of a negotiated settlement or awarded by a jury. Such damages are used as a general tool to hold hospitals, insurance companies and other entities that may not be prosecuted criminally responsible for their actions. It may also serve as a warning to those actors as well as government agencies that the cost of a lawsuit will exceed the cost of providing quality care to patients.

Instances of Wrongful Death

A wrongful death occurs whenever a person is killed because of the negligence of another person or entity. Therefore, it could occur after a car accident, after a late hit in a hockey game or in a hospital after a botched surgery. Wrongful death could also occur if a patient is denied an essential surgery by an insurance company or is the victim of an incorrect or untimely diagnosis by a doctor.

Patients may also be killed if they are given the wrong medication or if the proper medication is not administered properly by a nurse or other aide. Pharmacists may be liable for wrongful death if they give the wrong medication or otherwise contribute to a patient taking the wrong medication.

Survival Actions

A survival action is one that continues after a person dies. Instead of seeking compensation on behalf of surviving family members, it seeks compensation that a victim would likely have been entitled to in the event that he or she survived. Most states have straightforward laws regarding such claims. In Florida, state law simply says that a case cannot die just because the plaintiff does.

Note that the statutes of limitation may be different in a survival action case compared to a wrongful death case. In a personal injury case, the statutes of limitation are generally two years from when an injury occurred. However, a survival action claim may come with a statute of limitation of two years from when the injury occurred or as little as six months from when the death occurred.

Another difference between a wrongful death case and a survival action is that there may be no need for a representative of the deceased’s estate to take action. Depending on the specifics of a wrongful death case or survival action, the two claims may be consolidated into a single case.

Those who believe that a loved one has passed away because of another person or party’s negligence may wish to contact an attorney as soon as possible. It may be beneficial to learn more about what the law says about wrongful death cases in your state. It may also be possible to develop a plan to gather evidence that may result in a settlement or a favorable award from a jury after a trial.

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