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Wrongful Death Attorney

Whether slow or sudden, untimely or of old age, peaceful or traumatic, the death of a loved one is always a tragedy. However, preventable deaths can be especially difficult to process and accept.  When a loved one is unexpectedly taken from us as the result of someone else’s negligence, the grief can be overwhelming.  The law recognizes the particular egregiousness of these losses under the category of a ‘wrongful death.’

A wrongful death is generally used to refer to when a person dies as a result of a wrongful or negligent act of another person and or kin.  In the state of California, a wrongful death is a fatality that occurs by “the wrongful act or neglect of another.” When a wrongful death occurs, a civil lawsuit for monetary damages can be filed by the survivors of the decedent or their estate against the negligent party.  Here’s what you need to know about wrongful deaths.

Who Can File a Wrongful Death Claim?

Wrongful death claims are different from conventional personal injury lawsuits in that it is not the victim who files the primary lawsuit, but rather their dependents or associates.  Additionally, only people with specific relationships with the decedent are eligible to file wrongful death claims.

In California, the following parties are eligible for compensation under wrongful death law:

  • The deceased person’s surviving spouse
  • The deceased person’s surviving domestic partner
  • The deceased person’s surviving children

Additionally, parties who are able to demonstrate financial dependence on the decedent may be entitled to file a wrongful death claim, for example:

  • The deceased person’s ‘putative spouse’ or children. A ‘putative spouse’ is someone who has cohabitated with the deceased person to whom they were not legally married, but who had a good faith belief that they were married.  This may be the case if the marriage is invalid due to a legal technicality, for example the existence of another legal marriage.
  • The deceased person’s step-children
  • The deceased person’s parents

What Types of Accidents Cause Wrongful Death

Wrongful death might occur from any type of accident.  The most common causes of wrongful death are:

  • Automobile accidents. Traffic accidents are one of the biggest killers of Americans.  The National Safety Council estimates that more than 40,000 people were killed nationwide in car accidents in 2017.  In Los Angeles alone, 244 people died in traffic accidents.  Many of these deaths are the result of driver negligence, meaning that they would be entirely preventable had all drivers exercised the appropriate amount of care.  Wrongful death includes not only accidents involving other automobiles, but also those involving pedestrians or bicyclists.
  • Medical malpractice. Doctors, nurses, surgeons, anesthesiologists, and all other types of medical professionals are legally required to give the highest quality of care.  There are strict legal and professional requirements that all medical professionals must adhere to in order to secure patient safety.  Additionally, pharmaceutical companies and medical device manufacturers are required to ensure the safety of their products before they go to market.  Unfortunately, medical negligence results in hundreds of thousands of deaths each year.  Some common types of medical malpractice resulting in wrongful death include:
    • Surgical errors
    • Anesthesia errors
    • Improper medication prescription
    • Birth injuries
    • Misdiagnosis or delayed diagnosis
    • Nursing home neglect
  • Workplace accidents. Employers are legally required to ensure a safe and healthy environment for their employees and can be legally liable for injuries or deaths that occur in the workplace or during the course of work.  Workers can be injured or killed due to chemical or dangerous substance exposure, explosions, burns, falls, and other risks related to improper maintenance of the workplace.
  • Product liability. Manufacturers, distributors, retailers, and product designers are responsible for ensuring the safety of their products before going to market and are legally liable for certain assurances for the products they sell to consumers.  Wrongful death can result from a product flaw at any level of the production chain, and claims may be filed against multiple parties responsible for putting an unsafe product onto the consumer market.
  • Criminal activity. Wrongful deaths can sometimes occur during the course of the commission of an unlawful act, for example if a perpetrator discharges a firearm while committing a crime.  In these cases, the perpetrator is subject to criminal penalties, but the families of the victim may also file a civil lawsuit for damages related to wrongful death.  Even in cases where the defendant is found not guilty of criminal charges, they may still be found liable for the death in civil court.

Considerations When Determining Settlement Value

Awards can often be substantial as loved ones are able to be compensated for their:

  • Loss of love, companionship, emotional support, guidance
  • Lost income and support over a lifetime
  • Medical expenses
  • Funeral expenses
  • Value of household contributions
  • And other items

What Types of Damages can you Recover from Wrongful Death

There are several different categories of damages that can be claimed in a wrongful death lawsuit.  What damages can be claimed depend on the facts of the individual case.

Damages are typically allocated in accordance with whether they are meant to compensate the decedent’s estate for losses associated with the death (survivorship claim), or whether the damages are meant to compensate for personal losses family members suffered as a result of the death.  Damages associated with losses for the estate might include:

  • Funeral costs
  • Burial costs
  • Medical bills directly related to the death
  • Ambulance fees
  • Lost income related to the death, including lost income during hospitalization or possible income the decedent may have reasonably been expected to have earned in the future had they lived

Damages associated with personal losses to the family members of the might include:

  • Loss of anticipated financial support
  • Loss of consortium, including love, community, affection, moral support, sexual relations, training and guidance, or other emotional losses related to the family member’s death

In general, in California, juries are instructed not to award damages for grief, sorrow, or mental anguish that the claimant may have experienced as a result of the loss.  Additionally, claims cannot be filed for the decedent’s pain and suffering before their death.

In general, California does not award punitive damages in wrongful death claims.  Punitive damages are intended to punish the wrongdoer, rather than to compensate the decedent’s family or estate.  However, California does make an exception to this rule in cases where the defendant has been convicted of felony murder.

How Wrongful Death Compensation is Divided

In cases where multiple claimants have standing to make a wrongful death claim, California juries will typically award damages as a lump sum regardless of the number of individuals making a compensation claim.  For example, if the decedent has left a spouse and multiple children or dependents, the jury will award a lump-sum amount to the entire family, and the family would be responsible for allocating the payment amongst themselves.  Damages are calculated based on standard compensation calculations adopted by the court.

If the claimants cannot agree on how to divide the award, they may ask the court to do so on their behalf.  In especially difficult cases where all claimants are in agreement and with the judge’s consent, the jury can be instructed to make individual award decisions for each claimant.  This may be useful in cases where there is a strong potential for disagreement about award allocation, for example there are complicated relationships between family members, and the claimants would prefer a neutral arbiter on the matter.

Filing a Wrongful Death Lawsuit

In California, the statute of limitations for filing a wrongful death lawsuit is 2 years after the date of the death.  In other words, if you do not file a lawsuit before this expiration date, you will lose your right to wrongful death compensation.  In some cases, the statute of limitations will be calculated based on the date of the negligent act that is determined to have caused the death.  In general, your safest bet is to file a wrongful death lawsuit as soon as possible in order to ensure the court will accept your claim.

Once you determine that you want to file a wrongful death claim, that you have legal standing to do so, and that you are within the statute of limitations, you will need to prepare and file a civil lawsuit.  Typically, you will first need to file a complaint or petition with the court that provides notice and the factual and legal grounds for your lawsuit.  You will also need to file a summons notifying the defendant that the are being sued with pertinent information.

Once you have filed your petition with the court, you must undertake a legal procedure known as “service of process.”  Since all defendants to a lawsuit have a legal right to defend themselves, this procedure is required by the court to ensure that the defendant to your case has been properly notified that they are being sued.  Failure to properly execute service of process may result in your lawsuit being thrown out.

Courts have strict rules that must be perfectly observed at each step of this process.  In order to ensure that your lawsuit is accepted by the court, it is highly recommended that you consult with a qualified wrongful death lawyer, who will be best equipped to guide you through the difficult legal claims process.

Wrongful Death Statistics

In the United States in 2016, there were:

  • 231,991 injury-related deaths, or 71.8 deaths per 100,000 people
  • 68,995 poisoning-related deaths, or 21.4 deaths per 100,000 people
  • 38,748 motor vehicle accident-related deaths, or 12 deaths per 100,000 people
  • 38,658 firearm-related deaths, or 12 deaths per 100,000 people
  • 44,965 suicide deaths, or 13.5 deaths per 100,000 people
  • 63,632 drug overdose deaths, or 19.8 per 100,000 people

Earlier this year, Johns Hopkins released a study finding that medical error was the third highest cause of death in the United States, accounting for about 10% of deaths.  The study also found that medical errors were the most under-recognized cause of death.

Resources for You and your Family

  • The Consumer Products Safety Commission is a government portal that provides information on consumer product recalls, and general information on consumer product safety. It also provides information on ensuring a safe environment, for example guidelines for pool safety, carbon monoxide, and other common causes of accidental death around the household.
  • The National Institute for Occupational Safety and Health, operated by the CDC, provides information on workplace safety.
  • The National Patient Safety Foundation is a non-profit that provides helpful information for medical patients.
  • The Dougy Center hosts grief support groups and programs, including those specifically designed for the needs of children, teens, and young adults.
  • PsychCentral aggregates many resources for those dealing with the effects of grief and loss.

Can You File a Wrongful Death Lawsuit if you are Undocumented?

In California, the law allows everyone to file a lawsuit for wrongful death damages in civil court—even undocumented immigrants.  At The Dominguez Firm, we have multilingual attorneys and staff that can provide assistance in any language.  Don’t let the process of filing a wrongful death lawsuit intimidate you, our team will be with you every step of the way.

How Can The Dominguez Firm Help You?

If your loss of a loved family member is due to an unexpected accident, you do not need to deal with the aftermath alone. For over 30 years, the wrongful death attorneys at The Dominguez Firm have helped countless families recover just compensation. On qualifying cases, our firm can also assist with funeral expenses. We provide award-winning legal representation with compassion during your time of grief. Our firm has obtained several million and multi-million dollar results in wrongful death cases. Find out how we can help. If there is no recovery, there is no fee nor costs. Call now for a free consultation: 800-818-1818.

Additional reading: Can You Recover Compensation from the Loss of an Unborn Child?


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