Handling a wrongful death claim and lawsuit may requires legal skill and expertise. The injury and wrongful death lawyers at Isaacs & Isaacs are sensitive to the emotional needs and trauma of the survivors and are very experienced in handling the complexities of the law in prosecuting these claims against the insurance companies.
Wrongful Death Tort
When your loved one dies as a result of somebody else’s negligence or harmful act, the responsible party has committed what, in civil law, is called a tort. A tort is defined as a wrongful act, whether accidental or intentional, which causes harm to another, and for which the acting party (tortfeasor) is liable in Civil Court. Sometimes a tortfeasor is liable because of a criminal act. In these cases their act is both a crime and a tort.
Many remember the infamous case in which tortfeasor Orenthal Simpson was found liable by a civil jury for the wrongful deaths of his estranged wife Nicole Simpson and her friend Ron Goldman. O.J. had been criminally charged with their murders which were prosecuted in the criminal courts, but the jury found him not guilty.
Ron Goldman’s family then hired lawyers to prosecute Orenthal in the civil courts; not for murder but for the wrongful deaths of their loved ones. Here the family obtained a measure of justice against Orenthal for killing Nichole Brown Simpson and Ron Goldman.
- Several factors led to O.J. Simpson’s being found liable by the Civil Court jury, including:
- O.J. had to testify under oath at a deposition and the trial; jurors found he was not credible;
- Jurors were allowed to consider evidence that was not allowed to be heard by the jury in Criminal Court;
- His lawyer was not allowed to play the race card (the civil court judge declared it speculative and inflammatory);
- New evidence surfaced after the not guilty verdict;
- In a civil suit, burden of proof is only more likely than not (greater than 50%). The standard of proof in a criminal trial is “guilty beyond a reasonable doubt” which is typically referred to as 98%.
A Civil court jury found Orenthal Simpson liable for the deaths of Ron Goldman and Nicole Simpson, and they awarded punitive damages (to punish wrongdoers and discourage similar behavior) of $25,000.000.00 to his children, who were deprived of the love and guidance of their mother, and to the Goldman family. They also awarded the Goldmans 8 million in damages.
By filing a Civil Lawsuit, the families of the victims finally obtained some justice, and Orenthal “O.J.” Simpson was financially ruined. In an attempt to make some money that he could hide from the Goldman’s lawyers, he committed a crime and is now serving a harsh prison sentence in Nevada.
Who Can File a Wrongful Death Lawsuit?
Wrongful death statutes vary from state to state. In general, family members and beneficiaries can sue for wrongful death. The laws vary from state to state, but they all set up who is to prosecute the claims and how the recovery is to be distributed. Most states typically list the person who can prosecute the wrongful death claim and list those beneficiaries of the recovery, which usually would include the spouse and children, and if there is no living spouse, the children, grandchildren, grandparents, siblings, and beneficiaries or executor of the estate. In other states, the estate brings the action and the judgment is divided among the beneficiaries. In Kentucky, for example, an estate must be opened and a personal representative appointed to prosecute the wrongful death claim for the beneficiaries, such as spouse and children.
Suing Family Members
Some states prohibit one family member suing another family member for a personal injury or wrongful death claim. The legal theory is that it would destroy the unity of a family if members could sue each other. Historically, intra-family lawsuits were not allowed. However, over the years the law has recognized that when a family member commits an actionable tort against another family member, family unity is negligible, and there is more concern over the harm caused to the injured family member and her right to fair and just compensation. Most states now allow suing a family member.
You may think it’s harsh to file a wrongful death lawsuit against a member of your own family, but in some situations it could provide dependant survivors much needed support as well as a measure of justice and peace of mind. Surviving children can sue, either when they reach majority (legal adulthood) or through a guardian ad litem (court appointed guardian). More importantly, these financial needs typically are paid and satisfied by the other family member’s insurance. So, the “real” defendant who will be paying is the insurance company who assumed this obligation with the payment of insurance premiums.
Medical Malpractice Death
Statistics show that you are up to 33 times more likely to die from medical malpractice than from a gunshot wound. If you suspect medical malpractice caused your loved one’s death, you need to talk to an attorney who can obtain medical records, investigate the facts, locate insurance, identify the persons who may have committed the malpractice, and let you know where you stand and what your rights are in making a claim. Time is of the essence, and the claim needs to be investigated immediately before the statute of limitation expires or records are changed, lost, or destroyed by an incompetent doctor, a negligent nurse, or even a hospital or nursing home having financial trouble who would be more concerned about covering up their mistakes to avoid being held liable for damages rather than correcting the harm they caused to you or maybe caused to others.
We can’t emphasize enough the need to investigate a potential medical malpractice claim and fully understand how difficult it is to question the judgment and ability of those with whom you have trusted your health and care. However, doctors are people who have immense responsibility to those who have come to them for help, and their actions or even inaction can inflict enormous pain and harm to patients and their families. Harms that you may have to carry with you for the rest of your life. Since the statute of limitation can be a short as one year in some states, the investigation should be started while the facts are fresh and the information available.
The powerful American Medical Association, Chamber of Commerce, and various insurance companies and associations have lobbied your state legislatures hard and spent enormous sums of money in many states to change the laws to keep you from getting fully compensated for the harms that may have been caused to you and your family from medical malpractice and nursing home mistakes. In some states, these lobbyists have obtained damage caps to keep you from being fully compensated for your pain and suffering, loss of a loved one, or punitive damages for grossly negligent actions. The efforts to cut off your recovery have also resulted in your loss of the right to have your case heard by a jury and require you to first have your case reviewed by other doctors in a peer review board which takes time and adds delay to your case being heard and you being compensated. However a skilled wrongful death attorney who is experienced in medical malpractice is best suited to help you navigate these hurdles and demand just compensation for your and your family.
- Medical malpractice is hard to prosecute, and you should talk to an attorney as soon as possible before:
- Evidence disappears;
- Records are altered;
- Witnesses forget what they saw; and
- The statute of limitations expires to file your claim.
Employer Negligence Lawsuit
Workplace injuries are covered by workers compensation laws in most states, and most injured workers can receive medical and disability benefits regardless of any fault or blame against the employer. However, the workers compensation laws often have limits on the amount of any recovery and limit the types of damages, to exclude pain and suffering.
Some states, such as Kentucky, prohibit claims on behalf of an injured employee being filed or going to court against another employee. This is called the “fellow servant” doctrine and prohibits suits against a co-worker even if they were negligent. Of course, there are limited circumstances and exceptions to these rules, and the skilled workers compensation lawyers at Isaacs and Isaacs are familiar with these issues to see that you receive all the money you deserve for your injuries.
Although the typical workers compensation statute may limit what you can recover against the employer, the law does allow you to sue third parties (persons not employed by your employer) who cause you harm and injuries through their own negligence.
As you can see, worker’s comp is often inadequate to cover the full amount of damages and harms suffered by the employee, yet employers are allowed to hide behind it, even in cases of gross negligence where they neglected and ignored United States Occupational Safety and Health Administration mandates and guidelines to provide a safe workplace.
Again, the workers compensation laws typically address medical bills, disability and compensation for work-related injuries and disabilities. Workers comp in Kentucky, for example, does not pay for pain and suffering caused by the injury. Claims against persons outside the business can be sued if their negligence causes you harm, and the damages you or your family can recover include impaired earning capacity and pain and suffering (past and in the future).
An experienced wrongful death lawyer would investigate to find out which third parties (besides your employer), such as equipment manufacturers or another driver, may be held liable for your loved one’s death. If a defective tool or machine contributed to your loved one’s death, a skilled attorney could recover a fair and just settlement amount for your claim. Although in Kentucky, for example, you are prohibited from suing a “fellow servant” or co-worker whose negligence caused you harm which would limit your recovery to only workers compensation benefits. However, if you were hit by a driver who was not a co-worker, then you may be able to make a claim for pain and suffering against the other driver in addition to receiving workers comp medical and disability benefits.
Again, this area of the law is complicated, and a skilled lawyer experienced in torts, insurance, and workers compensation is best suited to help you receive all the compensation you deserve for the harms you have suffered.
Wrongful Death Settlement Amounts
The damages you can recover in a wrongful death claim vary from state to state, and depending on the particular state’s law may cover monetary loss such as:
- Future earnings;
- Gifts and Inheritance;
- Funeral expenses;
- Medical bills;
- Pension and other benefits;
- Loss of companionship;
- Loss of mentorship and guidance;
- Pain and suffering.
and intangibles like:
In the Commonwealth of Kentucky for example, the personal representative of the state can recover on behalf of the beneficiaries lost earning capacity (future wages), burial expenses, medical bills, and pain and suffering caused to the decedent. Loss of affection and companionship from the loss of a loved one is not part of the wrongful death claim, but rather would be the individual claim asserted by the spouse or child of the decedent.
In cases of gross negligence or criminal conduct punitive damages (to punish wrongdoers and discourage similar behavior) can be awarded, but only in states where punitive damages are allowed in wrongful death claims.
- Damages awards vary depending on facts such as:
- How much money the deceased made;
- Age of the deceased;
- Whether children of the deceased are dependant minors or grown.
In order to demand the maximum amount in civil suit damages it is imperative you seek the advice of an experienced wrongful death lawyer as soon as possible. There’s a time limit, called a statute of limitations, for filing your case which varies from state to state. If you miss the deadline for filing your wrongful death case, you could be barred from recovering any damages.
Isaacs & Isaacs Wrongful Death Attorneys
Isaacs & Isaacs personal injury law firm has recovered over $890,000,000.00 in damages for our clients who live in Kentucky, Ohio, and Indiana. We understand the strict deadlines for filing wrongful death claims. We are here for you day and night to:
- Listen to your story;
- Evaluate your claim;
- Advise you what to do next.
If you aren’t sure whether to file a wrongful death claim, our attorneys will evaluate your case free of charge. Call us now at 800-800-8888 for your free consultation with an Isaacs & Isaacs wrongful death lawyer.