Has a Wrongful Death ocurred?
The passing of a loved one is always a difficult time for family manners, but it can be even more difficult when the loved one was killed due to the negligence of another person or entity. This is known as wrongful death. If this has happened to a loved one, the decedent's immediate family members may file an action for wrongful death. If the decedent was still alive for a period of time after the injury, a claim may also be filed for medical expenses or pain and suffering that occurred as a result of the negligent party's actions. Any claim must be failed by a personal representative of the decedent and any compensation awarded goes to the decedent's estate. Once this money becomes a part of the state, it may pass to beneficiaries through the will and testament of the deceased.
There are four elements of a wrongful death lawsuit that must be met in order for the suit to be successful. The first element is the death of a human being. The second element in a wrongful death case is that the death had to be caused by someone else's negligence or someone else's intent to harm the person. Surviving family members must be suffering monetary injury as a result of the death, which can be in the form of the loss of income from a deceased spouse or the expenses related to funeral and burial services for the decedent. Finally, a personal representative must be appointed for the decedent's estate. This representative will have the responsibility of filing any claim for wrongful death.
There are several situations that can lead to a wrongful death lawsuit. If someone is the victim of medical malpractice and later passes away, then a wrongful death claim may be possible. Automobile and airplane accidents can lead to catastrophic injuries that are fatal in nature. If negligence played a part in the accident, it may be possible to recover damages through a wrongful death suit. Employees who are exposed to dangerous substances like asbestos and other chemicals may be able to file wrongful death claims against their employers. Claims can also be filed if someone was killed during a supervised activity or in the commission of a criminal act. Even if someone can be charged criminally for someone's death, they can also be subject to civil action.
When damages are being determined in a wrongful death case, the main measure of damages is the financial injury suffered. Financial injury can include medical expenses, funeral expenses, the lost prospect of receiving an inheritance, and the loss of financial support (in the case of the death of a spouse whose income supported family members). Determining pecuniary damages depends on the decedent's age, health at the time of the injury, and other information. If the decedent was a retired elderly person, the pecuniary damages calculated will be less than the damages for someone who was young, in good health, and had a spouse and kids to support with their income.
At Napoli Bern Ripka Shkolnik LLP, we know that dealing with the death of a loved one is difficult. If someone else's negligence has contributed to a loved one's death, contact us to discuss what you can do to recover for the loss.
Cases and Settlements of Note
Wrongful Wrongful Lawsuits & Settlements
- Badolato v. Rosenberg. The Second Department affirmed the trial court’s denial of summary judgment to chiropractor, holding that a physician retained to perform a physical examination for Workers Compensation or Disability purposes can be held liable for Wrongful Wrongful where the physician affirmatively interferes with the patient’s treatment to his detriment.
- Selva v. Lillie. The court affirmed a denial of summary judgment to general practitioner who claimed that her failure to refer a patient suffering neurological disorder that rendered him quadriplegic for specialist consult was not a departure from good Wrongful practice because she did not have the neurological expertise to recognize that the patient was suffering from a systemic neurological disorder rather than a herniated lumbar disc.
- Graham v. Mitchell. The appellate court reversed the trial court’s order granting summary judgment on a catastrophically brain-damaged infant claim and reinstated the plaintiffs’ complaint.
- Raciti v. Sands Point Nursing Home, et al., 54 A.D.3d 1014 (2d Dept’ 2008), reversing dismissal of plaintiff’s complaint by the trial court which abused its discretion in refusing to consider plaintiffs’ opposition and cross motion, delivered late to court due to interruption of transit service in a torrential rainstorm.
- Buckley v. Charles K. Goldner, LLC, Abranham Colton. The firm represented Buckley who was a guest in the building, who leaned against an elevator door, believing it to lead to laundry facilities. The elevator door swung open from below, and Buckley fell down the shaft, breaking part of his spine, tearing his urethra, and dislocating his shoulder. The Verdict of $1.9M was awarded in May 2010.
- Jermaine Rhoden v. NYC Transit Authority et al. The firm represented Rhoden who was bicycling on White Plains Road when he attempted to pass between a parked vehicle and a public bus. Rhoden became wedged between the bus and vehicle, and injured his knee, which required knee surgery to fix. A verdict of $550,000 was awarded in September 2009.
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