What Qualifies as Wrongful Death and How is it Different from other Personal Injuries

A wrongful death occurs when a person dies as a result of the negligence of another person or entity. While in certain situations a person may face criminal prosecution for causing a wrongful death, a wrongful death claim is a civil suit, which is different from any criminal charges that may be preferred against a person who causes a wrongful death. In a wrongful death claim, the standard of proof required to sustain a claim for compensation is significantly lower than when one is facing manslaughter or murder charges. An experienced wrongful death lawyer can help navigate these complexities.

What Qualifies as Wrongful Death

What Brings about Wrongful Deaths?

There are different circumstances that may bring about a wrongful death. The circumstances include any medical negligence that results in death, car accidents, defects that emanate from the negligence of a manufacturer of a particular product or any criminal act that results in death.

What you Need to Have in Order to Proof a Wrongful Death?

As a wrongful death claim is founded on the theory of negligence, you are required to proof the existence of all the three elements of negligence including the presence of a duty of care, the violation of the duty of care and the eventual damages that may arise as a result of the breach of care.

In order to do the above, you must ensure that you have sufficient evidence that shall ensure that your claim is successful. The kind of evidence that you should have in a wrongful death lawsuit are expert witnesses who shall support your case, the testimony of the family members and colleagues of the deceased, the medical costs incurred as a result of the wrongful death, documents to proof the age of the deceased at the time of death and evidence that indicate the employment status of the deceased, the businesses that were owned by the deceased, the salary and any other income that was made by the deceased before they died.

Differences Between Wrongful Death Claim and a Personal Injury Case

Wrongful death claim

For a wrongful death claim to stand, the party that was injured as a result of the accident has to die. While it is possible that some medical treatment was accorded to the deceased person before they died, there are certain instances in which they die at the scene of the accident without having gone through any form of medication. It follows therefore that one may not claim compensation for future medical expenses now that the person has died.

In light of the above, the compensation that is normally sought in wrongful death claim is for lost income, the costs of medical treatment if the person was taken to a medical facility for treatment and funeral and burial expenses. The compensation for medical costs shall only happen up until the point of their passing which is normally captured in their death certificate. The compensation for the funeral and burial expenses shall largely be based on all the amounts that were incurred by the deceased’s family for the burial and funeral expenses.

The major difference that comes between a personal injury claim and a wrongful death claim are the persons that normally institute the claims seeking compensation. In most personal injury cases, the injured party is the one that in most instances commences the claim to recover compensation. In the event of a wrongful death claim, the deceased person is no longer around to institute the claim. It follows therefore that the personal representatives of the deceased person shall commence wrongful death cases to recover compensation.

In certain instances, a party may file a personal injury case at the beginning and then depending on the progress of the injury, may later on file a wrongful death if the victim of the injury dies as a result of the injuries sustained following the accident. In instances, where the person dies, a personal injury claim that had been filed in court shall abate. In such instances, the personal representative shall take over the matter if the personal injury claim is yet to be concluded. In light of this, any type of defense that may hinder the surviving family members’ recovery if they were the plaintiff may be made against the surviving person but shall not affect in any way the surviving spouse’s right to recover compensation.

Personal injury cases

A personal injury case is premised on the fact that an injury has happened to a person. If a person has been injured, they shall be taken to a hospital or health facility to get treatment. In other instances, and more so when the injury is minor, treatment can be done at the accident scene through the administration of first aid to the injured person. However, if the injuries are major, treatment shall be done at a hospital or health facility.

Following the completion of medical treatment at a health facility, the victim of a personal injury shall be given medical records that will principally indicate the extent of his injuries, the medication given and what needs to be done further so as to ensure that the accident victim is fully healed.

The documents surrounding the personal injury including all the medical records, costs, accident footages, witness statements, videos and photographs, police reports and any other information pertinent to the happening of the accident are gathered and the victim of the accident or their loved ones can begin the process of getting compensation.

In most instances, the victim of the personal injury will receive compensation for the medical costs that they have incurred as a result of the accident, the lost wages and other incomes that they could not attain as a result of the personal injury, and compensation for the immense pain and suffering that normally surrounds personal injuries.

The basis for awarding compensation for the medical costs is the amount of money that have been incurred by the person when receiving treatment. The future estimated medical costs shall also be factored in when making the award. The medical report is an important document when making the decision of the amount to be awarded for medical costs. The basis for the award of compensation for the pain and suffering shall largely be based on the estimated measure of discomfort, pain, and suffering that the victim could have experienced. The basis for awarding compensation for lost wages and earnings shall largely be the information that is provided by the victim as to the earnings that they could have made if they had not been injured. The victim must demonstrate in a believable manner that this is what they have been making all along and that the same was disrupted by the accident. They shall also provide evidence of lost opportunities that came about as a result of the accident.

In personal injury cases, the person following up on getting compensation is normally the person who suffered harm. In instances where the injured are minors or very sick, their loved ones shall institute the claim on their behalf. If the injured party is married, their spouse may seek compensation for the services that were provided by their spouse before the injury.

The principal differences in both occasions are that the people who have the ability of filing the claims are different. Moreover, the areas for which one can receive compensation are different.

Similarities between Personal injury cases and wrongful death claims

While personal injury cases may have many differences with wrongful death claims, there are similarities between them. The similarities include that in both instances there must be a negligent party, there must exist a duty of care by the negligent party, there must be a breach of that duty of care and damages must have emanated from the breach of the duty of care. While they have these similarities, the principal difference shall be the people who are entitled to bring the action seeking compensation and the types of damages that may be awarded in the personal injury cases and in wrongful death claims.

Related FAQs

Q: How long shall a wrongful death claim take before it is determined

A: The time that a wrongful death claim takes before it is determined is largely dependent on many factors. Some of these factors are within your control while others are outside your control. The ones that are within your control are how soon you file a wrongful death claim, the type personal injury lawyer that you engage and your willingness to negotiate the matter. The ones that are outside your control are the directions of the court, the willingness of the at-fault party to negotiate and any other factor that may delay the hearing of your case. To expedite your matter, you must ensure that you do the things that are within your control in a timely manner.

Q: What is the statute of limitations for filing a wrongful death claim in California?

A: A wrongful death claim must be filed within two years from the passing on of a victim of a wrongful death. Filing a claim beyond this statutorily stipulated time may result in you not getting the compensation that you deserve. It follows therefore that you must engage the services of an experienced attorney as soon as your loved one is a victim of a wrongful death so that you can commence the process of seek damages.

Q: Which type of lawyer must I engage in a wrongful death claim?

A: You should engage a personal injury attorney who has the capacity and experience in dealing with wrongful death claims. It follows therefore that you must vet the possible attorneys before settling on one. You must choose an attorney who shall promptly update you on the developments on the matter, who has no disciplinary issues and those whose former clients think highly of them.

Q: Should I engage an insurance company or the at-fault party in negotiations without a lawyer?

While you may engage the at-fault party or their insurance company without a lawyer, it is in your best interest to ensure that you have a lawyer who shall help you with the discussions. An experienced attorney will ensure that you get the compensation that you deserve as they are aware of the amount of money that you may be awarded if the matter proceeds to court.

Q: What should I do to ensure that my wrongful death claim is successful?

A: You should engage a lawyer as soon as your loved one is a victim of a wrongful death if you are intentional about successfully seeking compensation. The personal injury lawsuit filed must also bring about the amount of damages that you are seeking and must be sufficiently backed up by evidence. Moreover, you must ensure that you only engage the at fault party or their insurance company with the help of an experienced personal injury lawyer. Furthermore, you should not sign any document from the insurance company or the at fault party unless your personal injury lawyer has reviewed the same. In conclusion, you must ensure that you listen to the counsel that your personal injury lawyer shall give you.

Big Ben Lawyers

Big Ben Lawyers have a vast amount of experienced attorney’s who are experienced in dealing with wrongful death lawsuits. Having successfully represented hundreds of wrongful death victims, our personal injury lawyers shall use their best endeavors to ensure that your wrongful death case is successful. Big Ben Lawyers may also engage the at-fault party and their insurance company, if it is apparent that they would want to negotiate the matter with you.

Big Ben Lawyers work on a contingency fees basis which means that you will not have to pay them any amount of money unless the wrongful death claim is successful. Big Ben Lawyers are available throughout the week and day and would gladly take up your wrongful death claim with the aim of ensuring that you get the compensation that you deserve. Contact us today.

[1] Justia, wrongful death law, available at https://www.justia.com/injury/wrongful-death/ accessed on 22nd May 2024

[2] Forbes Advisor, Wrongful Death Lawsuit Guide 2024, available on https://www.forbes.com/advisor/legal/personal-injury/wrongful-death-lawsuit/ accessed on 22nd May 2024

[3] Ibid

[4] Ibid, n.1

[5] Ibid, n.2

[6] Cornell Law School, Legal Information Institute, wrongful death, available on https://www.law.cornell.edu/wex/wrongful_death  accessed on 22nd May 2024


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