There are a few questions that come up with every wrongful death case, and we want to try to give some short answers to some of those questions:
• What types of wrongful death cases are there?• Who gets to file a wrongful death case?• Who gets the money from the wrongful death case?• How much money is a wrongful death case worth?
The basis of every wrongful death case is negligent or wrongful conduct that resulted in the death of another person. (This is why it is a “wrongful” death case). Most cases are based on negligence which is defined legally as the failure to exercise ordinary care for the safety of others, in short carelessness. You can also have a medical malpractice wrongful death case, but medical malpractice is just another term for medical negligence. Before you are ever entitled to recover money in a wrongful death case, you have to first be able to show that someone was legally to blame for accident or incident which resulted in the death of your loved one. This holds true whether the wrongful death was caused by an car accident, construction accident, nursing home abuse and neglect, or any other form of wrongful conduct.
A wrongful death suit cannot simply be filed by the estate of a deceased person. The law requires that a person be designated to handle the legal affairs of the estate. When someone dies having left a will, the person designated by the deceased – the executor of the estate – must be the one to file the lawsuit. Where there was no will, then a court order must be obtained appointing someone as the administrator of the estate. The person who files the lawsuit then has the power to make decisions concerning the lawsuit, including whether a suit should be filed and whether a settlement offer should be accepted. However, the executor or administrator does not ultimately get to decide who benefits from the suit or how much money they receive.
In a wrongful death case, there are two main aspects to the case: the survival action and the wrongful death action. The survival action is for the injuries sustained by the deceased prior to his or her death. The wrongful death action benefits the surviving next of kin for the losses they sustained as a result of the death. The survival action is an asset of the estate, while the wrongful death claim is brought by the executor or administrator on behalf of the next of kin. The distinction between the wrongful death action and the survival action can be highly significant, and we will discuss this later.
The amount of money that can be recovered in a wrongful death case can be significant, but this is also shaped to a large extent on the particular facts of the case. Some important factors include: the facts of the underlying accident, the existence and amount of insurance coverage, the amount of the medical bills if any, the amount of time between the accident and the death, the number and relationship of the surviving next of kin to the deceased, and other factors