While personal injury cases often involve much pain and grieving, the loss suffered in wrongful death lawsuits is often unbearable. If your family has recently lost a loved one to the negligence or wrongdoing of someone else, you may be able to file a claim for compensation. Contact an experienced San Diego wrongful death attorney at Estey & Bomberger, LLP today for more information.
Wrongful Death Suit Resources:
- How do I know if I have a Wrongful Death Case?
- How do you Prove Wrongful Death?
- Who can File a Wrongful Death Suit in California?
- When can you File a Death Claim?
- What Types of Compensation Can You Recover in San Diego County?
- Comparative Negligence in Wrongful Death Cases
- What are the Top Causes of Wrongful Death in America?
- How do I Choose a Wrongful Death Lawyer in SD?
Unfortunately, not every grieving parent, child, or spouse has the right to file a negligent death lawsuit. A wrongful death lawsuit requires several elements to stand up in a court of law.
The Necessary Elements for a Wrongful Death Lawsuit are:
- Death. A human being must pass away. Someone who is in a vegetative state is not eligible for a wrongful death lawsuit. These lawsuits cannot be filed on behalf of animals.
- Negligence or Intent to Harm. The cause of the person’s death must be determined to have been a result of negligence or intent to harm. Thereby, the defendant in the case must have some responsibility or fault that applies directly to the death of the individual.
- Survival with Need. The survivor filing the lawsuit must be dependent on the deceased for some sort of financial, emotional, or physical support, which is lacking now that they are gone.
- Representation of Estate. The estate belonging to the deceased must be legally represented by a designated individual.
Proving Negligence in a Wrongful Death Lawsuit
A wrongful death claim is essentially a personal injury claim on behalf of a plaintiff who did not survive his or her personal injury. The process for proving negligence in a wrongful death lawsuit mirrors the steps for proving negligence in a personal injury lawsuit. The plaintiff must prove four elements of negligence to succeed with a wrongful death suit. These elements are:
The defendant owed a duty of care to the plaintiff. This could apply to a driver’s duty of care to obey the traffic laws or a medical professional’s duty to prevent harm to patients.
The plaintiff must show the court how the defendant breached or violated his or her duty of care. This could be through a specific action, intentional tort, omission, or negligent error.
The damage in a wrongful death suit is typically easy to prove; the claimant files a wrongful death claim on behalf of a deceased person, so a death must have occurred for a wrongful death claim to take place.
Finally, a plaintiff in a wrongful death lawsuit must prove that the defendant’s negligence directly caused the victim’s death. The plaintiff may need to prove proximate cause, or that the defendant’s negligence was more likely than not the cause of death.
It is important to note that California follows a pure comparative negligence rule, meaning a plaintiff’s fault in causing claimed damages in a civil claim does not bar the plaintiff from economic recovery. The plaintiff recovers compensation minus a percentage of the case award equal to his or her percentage of fault.
Proving that negligence caused the death in question can be difficult in some cases. For example, if a patient with a serious medical condition dies during a surgical procedure, this does not automatically mean the attending physician is responsible. If the patient died from a known, reasonable risk of a procedure and the doctor performed the procedure competently, this could simply be the natural effects of a known risk.
However, if the doctor was negligent in treatment, failed to address a preexisting condition or medication allergy or other factor that contributes to the death, then the doctor committed medical malpractice and it would be reasonable to allege that the doctor negligently caused the death in question.
Aside from qualifying as “wrongful death” by legal definition, an official claim must also fulfill other requirements for the California courts to hear the case. Navigating these laws is what the wrongful death lawyers in San Diego at Estey & Bomberger, LLP do best. Let us take care of the paperwork for you, so you can have peace of mind that your case is going to the right people with the right information at the right time. Otherwise, you risk losing your opportunity to recover for the death of your loved one altogether. Below are four tips you should know about death claims:
California is relatively relaxed about who can file a wrongful death claim compared to other states. The filing hierarchy starts with the deceased person’s surviving spouse or domestic partner, as well as any surviving children. If these parties do not exist, the ability to file goes to anyone with a claim to the decedent’s property by intestate succession. This includes parents, siblings, and other potential beneficiaries. A putative spouse, children of the putative spouse, stepchildren, and parents may bring wrongful death claims if they can prove they were financially dependent on the decedent.
Like all civil claims, death lawsuits come with strict deadlines in California. For the San Diego courts to even hear a claim, the plaintiff must file within two years of the date of the loved one’s death. This is the same deadline as for personal injury claims in California. This deadline will apply in most wrongful death suits, but there are exceptions. If your loved one died due to medical malpractice, you have three years from the date of injury or discovery of injury. Claims against government bodies have only six months from the date of death to file.
A negligent death claim can lead to similar compensation as in a personal injury claim, as well as special damages for losses relating to the death of a loved one. Damages relating to the decedent can include compensation for related medical bills, retribution for the decedent’s pain and suffering, and payment for lost wages. Damages for the family can include mental anguish, funeral and burial costs, and loss of consortium. “Loss of consortium” encompasses the value of lost household services, love, community, support, affection, and guidance.
These claims can be well worth the effort of filing and going through the legal process. They can result in monetary awards your family needs to cover death-related expenses and to secure the future for a surviving spouse and children. They can also bring justice against the person or company that caused your loved one’s unexpected passing.
Civil Wrongful Death Claims vs. Criminal Claims – What’s the Connection?
In 2016, there were 5,332 violent crimes, 3,323 aggravated assaults, and 50 murders in the city of San Diego. If your loved one passed away in a murder or homicide, a criminal case isn’t the only legal action available. While the city presses criminal charges against the perpetrator, you and your family can press civil charges in pursuit of financial compensation. A criminal case can result in a conviction and jail time, but it’s the civil claim that can lead to damage recovery for surviving family members. In California, you can bring a wrongful death claim at the same time as an ongoing criminal case.
Don’t waste any time in pursuing negligent death damages from the person who killed your loved one. You and your family deserve closure, and, at the very least, payment for the expenses relating to your loved one’s death. It is up to you to file a wrongful death claim before the deadline. While the government takes care of criminal claims, you and your family must step forward with a civil claim. If the criminal case finds the defendant guilty, it can help your civil claim succeed. Get help from our aggressive attorneys as soon as possible after receiving the devastating news that a criminal has killed a loved one.
If any room for a defendant to argue comparative negligence exists, he or she probably will. If the plaintiff bears any amount of fault in a wrongful death claim, the court will reduce the financial toll on the defendant. For example, a man dies after suffering fatal injuries from a drunk driver, and the man’s family files a wrongful death claim. However, an investigation shows the victim was speeding at the time of the accident and may have partially contributed to the crash. The court assigns 10% of the fault to deceased, so the claimants lose 10% of the case award.
Comparative negligence can mean a difference of thousands of dollars in a wrongful death suit. For example, if a case is worth $500,000 and the decedent was 25% at fault for the death, the plaintiffs would lose $125,000 of the case value to reflect the decedent’s fault percentage. This is one reason effective legal representation is crucial for any wrongful death claim.
Finding the right attorney to handle a wrongful death case is crucial. An experienced wrongful death attorney can help limit comparative negligence and maximize the plaintiff’s recovery after a wrongful death. A good attorney can also help a plaintiff understand the types of compensation available in a wrongful death claim and explore claims against multiple defendants.
Estate Compensation Vs. Survivor Benefits
Depending on the nature of a wrongful death claim and how the death in question happened, there may be several types of compensation available to plaintiffs in a wrongful death suit. The nature of the plaintiffs also plays a role in determining compensation. Typically, a personal representative of the deceased estate will handle a wrongful death suit if the deceased had a living will or estate plan that specifically designated a representative or executor. In other cases, a close relative may file a wrongful death claim.
Ultimately, anyone with a claim on the deceased’s estate through intestate succession potentially can file a wrongful death claim. Anyone who was financially dependent on the deceased may also have grounds for a claim. The compensation available from a wrongful death case generally falls into two categories: the estate’s losses, and the surviving family members’ losses, including those sustained by the deceased during his or her final illness or injury. If a claimant was financially dependent on the deceased for something like spousal support or alimony from a previous marriage, a wrongful death claim may help ensure those payments continue.
Wrongful Death Actions Vs. Survival Actions
A wrongful death action is a civil action taken in response to an untimely death. State laws strictly govern who may file these claims, the damages available, and limits on those damages. When a victim dies immediately due to negligence, the surviving family or a personal representative would file legal action against the responsible party for economic losses resulting from the death. However, if the victim does not immediately die, there could be grounds for a survival action.
In a survival action, the claimant would receive compensation for damages incurred between the fatal incident and the death of the victim. For example, a person suffers catastrophic injuries in a car accident with a drunk driver and experiences several weeks of suffering before finally succumbing to his or her injuries. In this situation, a survival action would repay the claimant for the pain and suffering the victim experienced until his or death as well as lost income the deceased would have earned between the time of the fatal accident and the victim’s death.
Pain and Suffering in Wrongful Death Lawsuits
It can be difficult to prove pain and suffering after a wrongful death. In a wrongful death action, the claimants could claim compensation for their own pain and suffering due to the untimely loss of a loved one. Surviving spouses can receive compensation for lost affection and lost consortium. Surviving children may receive compensation for lost guidance and mentorship provided by the deceased.
Proving pain and suffering generally requires testimony from expert witnesses with backgrounds in medicine, psychotherapy, grief counseling, or other relevant disciplines. An expert witness provides the court with a professional interpretation of the plaintiff’s situation, so the jury can more accurately assess the scope of the plaintiff’s losses. A plaintiff’s attorney may also call on expert witnesses with financial backgrounds to help the court understand lost value on investments, retirement funds, and the amount of future earnings lost due to the untimely death.
It is essential for anyone considering a wrongful death case in San Diego to take the time to find a reliable, experienced wrongful death attorney with a proven track record of success in past wrongful death claims. These cases are notoriously complex and may take months or even years to resolve, and the right attorney will make a tremendous difference in the outcome of a prolonged legal battle for a wrongful death.
According to the most recent CDC data, fatalities from unintended injuries are the #4 leading cause of death in the U.S.
- Automotive 40,000 deaths occur as a result of automobile accidents each year. 40% of these are a result of driving under the influence, 33% are a result of a vehicle leaving the road, and another large percentage is the result of speeding. Vehicle rollovers also account for 10,000 deaths each year.
- Aviation Pilots who fly under the influence of drugs or alcohol and faulty aviation equipment are the two main causes of wrongful death lawsuits regarding air travel.
- Motorcycle As 65% of all motorcycle accidents result in death, there are often negligent death suits filed against the drivers of the vehicles who fail to see or make room for motorcyclists. Some motorcycle-related fatality suits are filed against manufacturers of the motorcycles or equipment.
98,000 fatalities occur each year as a result of medical malpractice. 90% of all reported malpractice incidents end in either lifelong disability or death.
- Surgical Misstep This includes leaving instruments or other materials inside the body, severing arteries, removing or transplanting the wrong organ or body part, and more.
- Medication Errors 1.5 million people are affected negatively by medication errors, and 7,000 deaths occur as a result of these errors yearly.
- Negligence in Care Especially prevalent in nursing homes, but applicable in any medical facility, nurses and doctors can be sued for faulty care.
- Misdiagnosis or Non-diagnosis When an individual is being treated for the wrong diagnosis or not being treated for a condition from which they suffer, it can be considered a negligent death can occur.
Recent Wrongful Death Case Testimonial
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There are three major components of product liability lawsuits. The most common product liability suits involve safety equipment and children’s toys.
- Design defect
- Manufacturing defect
- Failure to warn
An unsafe environment can cause a negligent fatality. The most common cases are slips and falls, while other cases involve mesothelioma as a result of exposure to asbestos.
Wrongful death can occur in the workplace as a result of a number of different causes, such as faulty equipment, slips and falls, explosions, burns, chemical exposure, overexertion in unprotected conditions, and more. 6,000 fatalities occur annually as a result of wrongful death in the workplace. Occupations with the highest risk factor for death include:
- Manufacturing Plants
Wrongful death claims are the most serious types of civil cases. They deserve attention from attorneys who have proven results. The lawyer you choose to represent you and your family can make all the difference in your experience and the outcome of your case. It is your prerogative to use free consultations to get a feel for an attorney and to choose the one who feels like the best fit for your family and your case. Here are a few things to look for in your San Diego wrongful death lawyer:
Experience. Search for experience not only with negligent death claims, but with the type of accident that killed your loved one. Look for lawyers who have handled claims dealing with fatal car accidents, medical mistakes, workplace incidents, criminal activities, or another type of incident that took your family member’s life. Experience in the courtroom, and not just in settlements, is imperative, since many death claims ultimately end up going to trial.
Commitment. Nothing is more serious or heartbreaking than wrongful death. Your family deserves a team of attorneys who take your loss as seriously as you do. Commitment to clients and to the case is important in the overall success of your claim. Your attorney should pay attention to detail, file your claim in a timely manner, and keep you updated about the status of your case. Total commitment to case success can maximize your family’s financial recovery.
Compassion. Look for compassion in your attorney. A lawyer who truly cares about the success of the case and the future of your family can often negotiate a better settlement. Compassionate attorneys bring a fire that insurance companies can sense. If an insurance company believes the case could go to trial, it will be more likely to offer higher amounts. Compassion isn’t just about the money, however; it’s about your experience during this most difficult time.
San Diego Wrongful Death Legal Representation
If you believe the death of your loved one happened as a result of negligence or intent to harm, and the loss of this individual affects you or someone you care about, we can help you! Contact the law office of Estey & Bomberger today to determine your rights. Call our office in San Diego today! (619) 295-0035
“I was very satisfied in regard to the attorney’s handling of my case. I admit that when I started the process, I had low expectations, but I didn’t experience any frustrations or inconveniences. I am delighted with the outcome!” – Steven B.