Wrongful Death

New York & New Jersey Wrongful Death Negligence Lawyer & Attorney

Was a Loved One a Victim of a Wrongful Death Negligence in New York or New Jersey?

Losing a loved one through the negligence of another person or entity can be one of the most painful experiences in a person's life. Following the fatal accident, families may not think immediately about legal action, choosing instead to focus on the grieving process. Pursuing legal action in the form of a wrongful death claim may be advisable for many situations. A lawyer from Robert A. Solomon, P.C. can discuss with you the advisability of pursuing a wrongful death claim. We can handle the legal affairs while you and your family focus on grieving and healing.

Wrongful death as a legal term is a death that has been caused by the fault of another person. For example, deaths caused by drunk driving, the manufacture of a defective or dangerous product, the construction of an unsound structure or building, or failing to diagnose a fatal disease may be considered under the law as "wrongful deaths".

Wrongful death lawsuits or claims are generally filed by family members or beneficiaries of the decedent. In some instances, these claims are filed in order to obtain monetary damages to cover the earnings the deceased person would have provided. Other damages that may be recovered include:

  • Expense associated with the death, e.g., medical and funeral.
  • Lost benefits, such as insurance, from the death
  • Loss of inheritance from an untimely death
  • Pain, suffering or mental anguish suffered by the survivor of the decedent
  • Loss of companionship, care or protection
  • Punitive damages, intended to punish wrongdoers and prevent them from harming others

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If a family member has been killed due to the actions or negligence of another party, Robert A. Solomon, P.C., has the experience and the skill to pursue a wrongful death claim on behalf of survivors. Monetary damages cannot replace the person, but they do provide compensation for lost income, medical and funeral expenses, and loss of companionship.

Wrongful death attorneys at Robert A. Solomon, P.C. represent families throughout the greater New York & New Jersey area. The firm has over 28 years experience with the law and they obtained substantial compensation through jury trials and/or negotiated settlements for victims of all types of accidents:

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Wrongful Death - An Overview

A "wrongful death" is a death due to someone else's carelessness or negligence. Every state has a civil "wrongful death statute," or set of statutes, which establish the procedures for bringing wrongful death actions. In most states, such persons as the decedent's immediate family members (surviving spouses and children, and sometimes parents or siblings) may bring the action.

Elements

In order to bring a successful wrongful death cause of action, the following elements must be present:

  • The death of a human being;
  • Caused by another's negligence;
  • Loss as a result of the death, and;
  • The survival of family members or others named by a particular state's statute as being entitled to sue under the particular state's statute.

A wrongful death claim may be based on circumstances, such as in the following situations:

  • Medical malpractice that results in decedent's death;
  • Automobile or airplane accident;
  • Occupational exposure to hazardous conditions or substances;
  • Death during a supervised activity.

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Damages

Pecuniary, or financial, injury is the main measure of damages in a wrongful death action. Courts have interpreted "pecuniary injuries" as including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Most laws provide that the damages awarded for a wrongful death shall be fair and just compensation for the pecuniary injuries to the persons for whose benefit the action is brought. If the persons bringing the action paid (or are responsible for) the funeral expenses or medical care incidental to the injury that caused the decedent's death, they may also recover those expenses. Finally, state statutes vary on whether interest on those amounts may be recovered.

Determining Pecuniary Loss

When determining pecuniary loss, it is relevant to consider the age, character and condition of the decedent, his or her earning capacity, life expectancy, health and intelligence, as well as the circumstances of the persons bringing the action. This determination may seem straightforward, but it often becomes a complicated inquiry, keeping in mind that the measure of damages is actual pecuniary loss.

Usually, the main consideration in awarding damages is the circumstances of the decedent. For example, when an adult wage earner with dependants dies, the major parts of the recovery are: 1) loss of income, and 2) loss of parental guidance. The jury may consider the decedent's earnings at the time of death, the last known earnings if unemployed, and potential future earnings.

Adjustments in the Jury's Award

In a wrongful death action, the jury determines the amount of the damages award after hearing the evidence. The jury's determination is not the final word, however, and the size of the award may be adjusted upward or downward by the judge for a variety of reasons.

If the decedent earned considerable income and provided it to his family, that sum will be recoverable. A jury may award lost earnings despite the decedent's having been unemployed, if he had worked in the past and if the plaintiff presented evidence of the decedent's average earnings while employed.

If the decedent routinely squandered his income, this might reduce the family's recovery. The courts might reduce a jury's award if the decedent had poor earnings, even though he was young, had great potential, and supported several children. If the plaintiff fails to present such evidence of the decedent's average earnings, the court may set aside the jury's damage award and order a new trial.

Using Expert Testimony to Determine Pecuniary Loss

Plaintiffs are allowed to present expert testimony of economists to establish the value of the decedent to his family. Until recently, this testimony was not admissible when a housewife died, but that rule has changed. When the decedent is a housewife who was not employed outside the home, the financial impact on the survivors will not involve a loss of income, but increased expenditures to continue the services she was providing or would have provided if she had lived. Because jurors may not be knowledgeable regarding the monetary value of a housewife's services, experts may aid the jury in this evaluation.

Punitive Damages

Punitive damages are damages awarded in cases of serious or malicious wrongdoing to punish the wrongdoer, or deter others from behaving similarly. In most states, a plaintiff may not recover punitive damages in a wrongful death action. There are some states, however, that have specific statutes that permit the recovery of punitive damages. In states that do not explicitly allow or disallow punitive damages in wrongful death actions, courts have held punitive damages permissible.

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Survival Actions for Personal Injury

In addition to damages for wrongful death, you may be able to recover damages for personal injury to the decedent. These are called "survival actions," since the personal injury action survives the person who suffered the injury. The persons entitled to bring the wrongful death action or the decedent's personal representative, as the case may be, can bring such an action together with the wrongful death action.

In a survival action for a decedent's conscious pain and suffering, the jury may make several inquiries to determine the amount of damages, including: 1) the degree of consciousness; 2) severity of pain; and, 3) apprehension of impending death, along with the duration of such suffering.

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Limitation Periods

As with any personal injury claim, there is a time component (called the statute of limitations) governing when a wrongful death action must be filed. The limitations period in a wrongful death action in some states may run from the date of death while in other states it has been held to commence when the party bringing suit discovers, or should reasonably have discovered the connection between the decedent's death and the cause. In many states, the appointment of a personal representative will start the limitations period running. When the decedent's death is a result of a disease caused by a toxic or hazardous substance, some states have different time requirements. Anyone who believes he or she might have a wrongful death claim should contact an attorney to determine how much is left to file suit.

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The Physician-Patient Privilege in Wrongful Death Actions

In wrongful death actions, the issue of the physician-patient privilege, which protects the privacy of a decedent's medical records, often arises. The general rule is that unless the patient/decedent waives the privilege, a physician is not allowed to disclose any information acquired in attending to the patient in a professional capacity. Without this evidence, however, the case can be hard to prove. With an experienced attorney on your side, you can be assured of gathering and presenting the best evidence available for proving your case.

The fact that the patient is deceased does not necessarily waive the privilege, or make it absolute. Some state laws provide that the decedent's personal representative, surviving spouse, or next of kin may waive the physician-patient privilege for the decedent. Nonetheless, the principle is still disputed by physicians and hospitals that do not want to give copies of their records to attorneys. Some states' public health laws require the disclosure of medical records only to doctors and hospitals, and do not expressly provide for disclosure to attorneys. Stating that one is seeking to obtain records in contemplation of litigation is often sufficient to make the patient's (and hence the plaintiff's) right to the records absolute. Typically, a personal representative must be appointed before a decedent's medical records can be obtained.

Thus, the act of bringing a wrongful death action may indeed result in the physician/patient privilege being waived by operation of law, especially if the patient/decedent's prior health is at issue. In such cases, the physician must provide the documentation requested, except information that would tend to "disgrace the memory of the decedent."

In addition, a patient's privilege is waived regarding all medical treatment related to an action when the plaintiff commences the action for negligence or personal injury. Often, a decedent's family may recover for the decedent's personal injuries, like pain and suffering, experienced prior to the decedent's death. So, in a combined wrongful death-personal injury case, the privilege would be waived.

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Wrongful Deaths Involving Children and the Elderly

No one can set a price on human life, but it is one that courts and juries are required to attempt to do so in wrongful death actions. Because the primary measure of damages in a wrongful death action is pecuniary (financial) loss, the death of a child brings up particular difficulties. When an adult dies, the pecuniary loss to the family is more quantifiable. For example, when a parent dies, a child may seek damages for loss of the parent's care, income, nurturing, and guidance. When a child dies, the parents' recovery is limited to their pecuniary loss. Attorneys experienced in handling wrongful death cases can help explain these and other legal concepts and be your best allies at this time of terrible loss.
When a child dies, pecuniary injuries are determined by:

  • The age, sex, life expectancy, work expectancy, state of health, and habits of the child;
  • The child's earning potential;
  • The relationship of the decedent to those claiming a pecuniary loss; and,
  • The health, age, and circumstances of those claiming pecuniary losses.

Clearly, much of this inquiry is speculation, and the younger a child is at the time of death, the harder it becomes to determine pecuniary loss to the parents. A jury may consider what the child would have contributed to the parents' support, but this should not be pure guesswork. Juries often use life expectancy charts as a starting point for calculations. Rules against jury speculation do not necessarily limit parents to small recoveries, but courts generally affirm small awards for the deaths of children. Because of these complexities, it is important to have an attorney who is experienced in bringing wrongful death actions and who will know the best ways to establish damages.

Many people inquire about wrongful death actions for fetuses. States vary on whether you may bring a wrongful death action when a fetus dies. Many states require that a child be born alive for its death to constitute the first element of a wrongful death action. Thus, the death of a fetus is frequently not actionable, nor is the parents' emotional injury from losing the fetus.

In the same way that the death of a child might not produce a large award of damages, the death of an elderly person also has somewhat limited recovery potential. Modest awards for the deaths of elderly people are due to several factors. First, it is often assumed that someone past the age of retirement no longer has significant earning potential. Second, the children of elderly people are usually adults who no longer need the same guidance, support, or nurturing of their parents as they did as children.

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Statutes of Limitations and the Discovery Rule

All civil actions, including wrongful death actions, have time limits as to when they must be filed. These time limits, or "limitations periods," are set out in laws called "statutes of limitations." If you do not file your action before the expiration of the applicable limitations period, in most cases you permanently waive your right to recover damages. If you believe you have a wrongful death claim, contact an experienced wrongful death attorney at once.

Settlements and Damages in Wrongful Death Cases

Wrongful death actions can be very complicated, as the wrongful acts of several parties may have contributed to an individual's death. Pre-trial, out of court settlements are common in wrongful death cases, because most defendants want to avoid the publicity of having caused a death. When such out-of-court settlements occur, a reduction of the wrongful death damages award issued by a judge or jury may also occur. The plaintiff's release of one defendant frees that defendant from liability to contribute to any other defendant, and waives his/her claim for any contribution from co-defendants. In other words, the released defendant is out of the action, and the remaining defendant(s) will pay no more than their comparative share of the culpable conduct as found by the jury. While all of this information may seem overwhelming, an attorney experienced in wrongful death law can help make sense of legal jargon and complexities and guide you through the complicated legal maze of a wrongful death lawsuit.

As a procedural matter, the court takes any evidence of a payment to or settlement with another party, which is offered by a defendant in mitigation of that defendant's own liability for damages. The court then deducts the proper amount, if any, from the jury's award. Thus, the defendant in a wrongful death action has the burden of proving that a plaintiff has settled with another party. In the end, if the defendant is able to prove the existence of such a payment, then the court must reduce the award by the appropriate amount.

The law governing wrongful death actions also provides for the reduction of a damages award in proportion to any payments to the plaintiff from "collateral sources." A collateral source may include insurance (except life insurance), Social Security, workers' compensation, or employee benefit programs. However, a reduction in the damages award is appropriate in only two situations: 1) in an action for medical malpractice; and, 2) an action by a public employee against his employer or fellow worker for personal injury or wrongful death.

In a medical malpractice action, if the court finds there was a payment from a collateral source, then the court must reduce the damages award by the amount of the payment minus the amount the plaintiff paid in premiums for such benefits in the two years before the action accrued, minus the projected future cost to the plaintiff of maintaining his or her benefits.

Similarly, a reduction in the damages awarded may occur in a wrongful death and/or personal injury action by a public employee against a public employer, who is subject to indemnification when the injury occurs while the plaintiff was acting within the scope of his employment. In such a case, the court must reduce the award for payments from collateral sources provided or paid for by the public employer. This includes paid sick leave, medical benefits, death benefits, dependent benefits, a disability retirement allowance, and Social Security (except those benefits provided under title XVIII of the Social Security Act). However, these collateral sources do not include those entitled by law to a lien against the plaintiff's recovery. If the court finds such a payment from a collateral source, then the court must reduce the award by that amount minus the amount the public employee contributed for that benefit.