Even after medical malpractice results in death, it can still be a basis for a legal claim. The victim’s survivors may be able to bring a wrongful death lawsuit or a survivor action. For those considering bringing such claims, it’s important to know the difference.
Wrongful Death Claims
A wrongful death action compensates those closest to the deceased person for the harm they suffered as a result of the person’s death. Usually it’s members of the deceased person’s immediate family who can bring a wrongful death action, but if there are no surviving children, spouse or parents, a more distant relative may be allowed to make the claim.
Most concretely, a wrongful death claim compensates for measurable economic losses like funeral expenses, loss of financial support, or the value of lost stay-at-home services. It can also cover financial support for minor children, which can include treatment costs for children with health problems of their own. Compensation for wrongful death can also cover losses that aren’t so readily measured, like loss of companionship and emotional support. Some states’ wrongful death statutes also include compensation for the deceased person’s pain and suffering prior to death.
Survivor Actions
A wrongful death claim is distinct from a survivor action. A survivor action is, essentially, the claim for medical malpractice that the deceased victim would have been able to bring had she or he not died. As with a live person’s malpractice claim, a survivor action seeks compensation for harm to the victim that resulted from the alleged malpractice. Generally, a survivor action can seek compensation for the same types of harm as a live malpractice claim, such as for medical expenses, lost wages, and sometimes punitive damages. Some states impose restrictions on other types of damages, such as for the deceased person’s pain and suffering.
Survivor actions are brought by the deceased person’s estate, at the direction of the estate’s executor. If the claim is successful, the executor adds the proceeds to the deceased person’s estate and distributes them to the estate’s creditors and heirs.
The Underlying Medical Malpractice
When both wrongful death and survivor actions depend on an underlying claim for medical malpractice, in many states the rules for malpractice lawsuits apply. Certain states have particular requirements for medical malpractice lawsuits, and generally these requirements make bringing such a claim more difficult for the plaintiff.
Many states require certain pre-lawsuit procedures such as mediation, advance notice requirements, or review of the claim by a screening panel. There may also be a statutory limit on the amount of money a plaintiff can be entitled to. Some states have a shorter statute of limitations for medical malpractice claims, and where that statute conflicts with the statute of limitations for wrongful death or survivor actions, the court may apply the shorter medical malpractice deadline.
Generally, medical malpractice claims need to show that the victim’s death happened due to a medical error that should not have been made. Typically this requires testimony from a medical expert to establish what the standard of care was and how the actions of the defendant physician failed to live up to it. The plaintiff will also have to provide a basis for calculating damage amounts. More objectively-determined types of damages like medical expenses are easily established via documentation; other, more subjective types, like punitive damages or pain and suffering, may be left to the discretion of a jury.
For those who have lost a loved one possibly due to medical malpractice, a medical malpractice attorney is the best and most reliable source of information about a possible claim.
Obtain a Free Wrongful Death Case Evaluation
If your loved one died from a personal injury caused by the negligence or intentional misconduct of another party, you may be able to pursue compensation for your loss, including but not limited to: medical or funeral expenses, loss of financial support, pain and suffering, loss of consortium, and punitive damages.
The following types of wrongful death cases are common examples of what a family member can sue for:
- Car Accidents
- Bicycle or Pedestrian Accidents
- Motorcycle Accidents
- Boating Accidents
- Medical Malpractice
- Medication Errors
- Workplace Accidents
- Drowning Accidents
- Nursing Home Neglect/Abuse
- Slip and Fall Accidents
- Defective Products
- Other Personal Injury Claims that Caused the Death
One thought on Medical Malpractice Claims May Survive the Victim
My father was killed in N.C. by way of medical malpractice . I have the medical examinors report saying this . Doctor , her office , their insurance , ambulance co. , or hospital all refuse to pay any thing .