Wrongful Death Frequently Asked Questions
Frequently asked questions about wrongful death lawsuits answered by Sacramento top-rated personal injury lawyer Edward A Smith.
In this article:
- What is a wrongful death action?
- Can heirs recover punitive damages against a driver who causes death?
- What are the most common causes of a wrongful death?
- For what reasons do hospitals and doctors get sued for wrongful death?
- Is a college liable if a student is murdered?
- Are wrongful death damages taxable?
- Can I find a view of an accident scene after the roads have changed?
- Who is responsible if someone is killed in a high-speed chase initiated by the police?
- How long do wrongful death cases take?
- Why can Michael Brown's family sue for wrongful death?
- What is a survival action?
- Can heirs bring a survival action?
- Can parents sue for wrongful death in California?
- Can grandparents recover for wrongful death cases in California?
- What is a wrongful death lawyer?
- Are wrongful death settlements public records?
- How are wrongful death settlements paid out?
- Is an autopsy necessary in a wrongful death case?
- Is there a law that governs who can recover from a wrongful death in California?
- Who pays in a wrongful death suit?
- Can punitive damages be recovered in a wrongful death case in California?
- What is wrongful death malpractice?
A wrongful death action is an action on behalf of the heirs or relations of the deceased on their own behalf. The law recognizes the heirs or relatives were deprived of the love, companionship and often the income of the deceased and allows them to recover for that.Can heirs recover punitive damages against a driver who causes death?
It depends. Almost all insurance policies exclude liability for punitive damages so the auto insurer will not pay them. The driver himself, however, might have to pay such costs out of pocket if a case is filed against him and won. That presumes that the driver has enough assets to pay a judgment. We discuss this with our clients in every punitive damages case.What are the most common causes of a wrongful death?
Common causes of wrongful death are :
- Automobile accidents (including accidents where a defect in the car such as an airbag that doesn't go off or a roof that crushes in) occurs.
- Medical negligence caused death as well as deaths caused by drugs or defective medical devices.
- Deaths that occur at work from various causes
- Nursing home deaths caused by neglect or medical errors.
- Construction site deaths including falling off scaffolds or trench cave-ins.
- Deaths caused by defective products.
- Deaths caused by defective warning labels.
- Deaths from violence.
Doctors and hospitals get sued for Wrongful death for many reasons. Sometimes there’s a wrong prescription given. Sometimes during an operation, a foreign object is left in the body. Often, hospital infections from unsanitary conditions cause the death of a patient. Often, there’s a misdiagnosis and the patient receives treatment for the wrong disease which winds up killing him or her. Surgical errors and anesthesia errors are also common. Sadly, hospitals are some of the most unsafe places to be seriously ill. It often takes other skilled physicians in the same specialty to review the medical records and help the jury determine the existence of malpractice.Is a college liable if a student is murdered?
Every case depends on the underlying facts, but in many cases, a college or university may well be responsible for a student's murder. Sometimes colleges promise to provide adequate security and then fail to do so. Sometimes colleges fail to regulate fraternity's although they know hazing and other fraternity activities can be very dangerous. Sometimes colleges match people up with dangerous roommates. Again, every situation is different, and an experienced wrongful death attorney can help in this difficult time.Are wrongful death damages taxable?
IRS Publication 4345 states wrongful death damages fall into the category of compensation for physical injuries and are therefore income-tax-free for the survivors. Note, however, that these damages may be subject to the estate tax if they bring the total amount of the estate over the statutory exemption. Further, if punitive damages are awarded as part of the judgment, these may, in certain circumstances be subject to income tax. Finally, a caution. If there is a non-disclosure clause in the release, the IRS may take the position that that was “bargained for” and hence that all or part of the award is taxable. Hint: Never sign a release with a nondisclosure agreement unless the defendant agrees to defend and indemnify you if the IRS comes after you for taxes.Can I find a view of an accident scene after the roads have changed?
Q: My husband was killed in an accident two years ago. I went to where the accident happened, and it looks like they changed the roadway from the way it was. Nobody took photos when my husband died. Is there any place where I can find a view of the scene on the date he died?
A. Possibly. Google Earth has some amazing new capabilities. One of them shows historical views of most places on earth at different time periods. Go to Google Earth at pull from the “View” menu. Underneath you will see a section called Historical Views. Go there, and you will find a sliding bar that you take you back in time to various dates when Google photographed the scene. In one recent case of mine, we used Google Earth's historical views to show a road had been altered after the accident we represented the injured party on. Note also that there is a Sun Function in the pulldown menu where you can see an approximate view of the scene lighting at various times of the day. Google Earth is a great resource to use as a starting point in finding historical views of a scene. Another place to start your search for historical views is with WhatWasThere.Who is responsible if someone is killed in a high-speed chase initiated by the police?
Unfortunately, in California, the answer appears to be “NO”.California Vehicle Code Section 17004 states the following: "A public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call or when in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm or other emergency call."Additionally, the US Supreme Court has also upheld the immunity of police when involved in high-speed chases. This is very unfortunate as over 10,000 people yearly are injured by police agencies involved in high-speed chases often for very minor offenses. Although the CHP and other agencies have “Guidelines” for these cases, they are of very little help to someone severely injured or killed as a result.How long do wrongful death cases take?
Wrongful death cases can resolve in a few months or sometimes take several years to fix. Here are some of the things that influence how long a case takes.
- Amount of Insurance - Sometimes, the responsibility for the accident is clear but the “at fault” party has minimal insurance. In most cases, the other insurance will pay minimal limits upon demand. On the other hand, there may be a case where there are minimal limits for the “at fault” party, but larger uninsured or underinsured motorist limits. In those cases, the settlement for the “at fault” party typically happens very quickly (in a month or two) and there will later be an uninsured motorist claim which will take longer to resolve. In a case where there is a large insurance policy ($250,000 or more) for the “at fault” Driver, the insurance typically does not offer to pay the policy limits until discovery isUnderway, that is until at least key depositions are taken.
- Liability - Where responsibility of wrongful death is contested, litigation will usually be necessary. In these cases, it can take months or even a year or two before the case is ready for trial.
- Ridiculous Valuation of the Death - It’s sad but true that insurance companies and adjusters are often callous and offer nowhere near a fair case value when dealing with a wrongful death case. When this occurs in our office, we immediately file suit and move the matter towards trial. It does not pay to negotiate when an insurer is acting in bad faith and simply to delay paying a valid claim.
A question I’ve been asked recently is why Michael Brown’s family in Ferguson can sue for wrongful death even though the Department of Justice declined to pursue criminal charges. In a Wrongful Death case, certain enumerated people have the right to recover for damages after the death of a loved one. In Michael Brown’s case, his parents were next of kin since He was not married and had no children. The Department of Justice investigated this very controversial case and concluded that it could not prove to a jury beyond a reasonable doubt that the officer intentionally or negligently shot Michael Brown. In a criminal case, the prosecutor must prove “beyond a reasonable doubt” that the accused is guilty, and in this case, because of all the conflicting evidence, they did not feel they could do so. In a civil case, however, the standard is not as strict. In a civil case, the standard is “more probable than not”. In the Wrongful Death case brought by Michael’s parents, their attorney will need to prove “more probably than not” that the officer negligently shot Michael, and that the City of Ferguson, more likely than not, did not follow reasonable procedures in training and educating its officers as to when to use firearms. In the trial, the jury will hear the evidence from all of the witnesses called before it, and make a decision based on the evidence. Many times, the verdict in a criminal proceeding is different from that in a civil one. For example, in the OJ Simpson case, the jury did not convict him of murder in the criminal case because they did not believe “Beyond a reasonable doubt” That Simpson was guilty. Apparently, members of the jury believed to some extent, the mantra “If it doesn’t fit, you must acquit”.In a later, civil Wrongful Death case, however, the parents of the victims won the civil case where the standard of proof was “More probable than not.”Based on my reading to date, I’d say the parents have an excellent chance of winning in the Civil case. Although Brown may have been the aggressor and started the fracas with the officer, at some point, he started to run away and then turned around and went back. It seems a stretch to me that a trained officer would need to shoot an unarmed man 5 more times after he was turning around with his hands up in the air.
In California, any conscious pain and suffering of the decedent give the heirs the ability to recover in what is known as a "survival action." A survival action can be a cause of action in addition to the wrongful death action. Sometimes, there are reasons, however, not to bring a survival action. Suppose, for example, that the wrongdoer had only a $100,000 insurance policy and the decedent incurred over $100,000 in medical bills paid by Medicare. If a survival action is brought by the heirs in addition to a wrongful death action, Medicare will want all its money back from the recovery. If the heirs bring only wrongful death action, Medicare will have no claim on this.
Q: I have heard that besides wrongful death, the heirs can bring a survival action. What does that mean?
A: A survival action can be brought by decedent’s successors if the decedent did not die immediately after the accident. While pain and suffering damages are not awardable, the successors can still recover for medical bills incurred as well as lost wages before death. In many cases, however, it is better NOT to claim damages for survival. For example, suppose there is a death, and the medical bills are over $100,000 from the accident. The person at fault has $50,000 in insurance. If Medi-Cal or another agency paid the medical bills, they will want to be reimbursed from the Survival case settlement. In cases like this, it may be better for the heirs NOT to file for survival damages since if they recover Medi-Cal will get most or all of the money. Wrongful Death damages belong to the heirs alone, and Medi-Cal cannot get reimbursed from that action. An experienced Sacramento Wrongful Death Attorney can guide families in the best way to proceed in these difficult cases. A survival cause of action can be filed by the estate’s personal representative, or if none has been appointed, by the decedent’s successor-in-interest. A survival cause of action can only be brought if the decedent did not immediately die from his injuries. However, if the deceased lived for even a short time between the accident and his or her death, then a survival cause of action may be appropriate. Damages recoverable under the statute include “the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover, had the decedent lived, and do not include damages for pain, suffering, or disfigurement.” Essentially, the survival statute allows one to “step into the shoes” of the deceased and recover the damages the deceased person would have been entitled to have they lived, including medical expenses and lost wages, as well as penalties, punitive or exemplary damages.Can parents sue for wrongful death in California?
When a negligent or intentional act of another leads to the death of a child is an experience that no parent wants to experience. It can seem as though their entire world comes crashing down in an instant. California recognizes that a grieving parent has a right to file a wrongful death claim against the person that caused their child's death.
Q: Does a parent have the standing to sue for the death of their child?
A: This question does not have a clear answer. However, the courts have been largely in favor of the opinion that a parent has standing, even if their child had a surviving spouse, as long as that child did not have children of their own. In such a case, the parent would be able to file a claim for the wrongful death of their child.Can grandparents recover for wrongful death cases in California?
Normally they cannot. The following people, if alive, would have rights before them: A surviving spouse or registered domestic partner, any children of the marriage or issue of any deceased children, dependent stepchildren. Dependent parents and dependent minors living in the victim's household for at least 6 months. If no-one in the above sentence is alive, then, and only then, can grandparents have a right to recovery.What is a wrongful death lawyer?
A wrongful death lawyer is an experienced lawyer in injury law and has typically been practicing for many years in wrongful death claims. He should be sensitive to the grief the survivors are feeling as well as very capable in injury law. Coping with the death of a close family member can be one of the most difficult experiences in your life. When the death of that family member was the result of someone else's fault or negligence, it only intensifies the grieving process. It is in these times that you need a qualified and experienced wrongful death attorney to help you navigate the complexities of filing a wrongful death claim so you can be compensated for your loss.Are wrongful death settlements public records?
Wrongful death settlements are normally not public records. Settlements are kept between the parties. In the case of a wrongful death case, the amount of the settlement is only known to the wrongdoer's insurance and to the persons who recover for the wrongful death. In the event that the case goes to trial, all records are made available to the public; this includes the amount of the verdict that the Jury awards the plaintiffs.How are wrongful death settlements paid out?
Wrongful Death settlements are typically paid out as a lump sum. The Lump sum is paid and then attorney fees and costs to procure the settlement are deducted. The remainder goes to the wrongful death heirs. Occasionally, a structured settlement can be done. A structured settlement works similar to an annuity. The amount that would go to the heirs (Or any portion they designate) is invested with interest and then can be paid at a monthly or yearly interval. So, if the wife of the decedent decides she would like an income monthly instead of a lump sum, this can be negotiated.Is an autopsy necessary in a wrongful death case?
Normally, an autopsy is necessary when the cause of death is pretty clear. Someone killed in a car accident very likely died because of that accident. Nonetheless, in certain cases, an autopsy might be warranted. Take a case where a 75-year-old man with a serious heart condition has an accident and is killed. It is possible, the insurance company may try to defend by alleging he had a heart attack and died before the accident rather than having the accident and then dying. In these type cases, autopsies prove invaluable. Also, in almost all medical malpractice cases where someone dies, the cause of death usually becomes one of the major issues in the case. An Autopsy is almost always required in these cases.Is there a law that governs who can recover for wrongful death in California?
Yes, there is. It is found in the Code of Civil Procedure at Section 377.60. The Actual wording is below:
377.60. A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf:(a) The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. (b) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, or parents. As used in this subdivision, “putative spouse” means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid. (c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent’s death, the minor resided for the previous 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support. (d) This section applies to any cause of action arising on or after January 1, 1993.Who pays in a wrongful death suit?
Normally, the insurance for the driver at fault is the one who pays damages in the lawsuit. If the driver did not carry enough insurance, it may be possible to go after the driver's personal assets. This is a complicated question, and a wrongful death attorney needs to discuss the benefits and detriments of proceeding with his or her client. Sometimes, the driver of the car that caused the accident is driving someone else’s car and there may then be 2 insurance policies to recover from. Additionally, the decedent may have her own Underinsured Motorist policy in her own car. This insurance comes into play if the amount of that insurance is greater than that of the at-fault driver. In addition to the above, it’s important for the lawyer to investigate if the driver at fault as at work or doing some kind of errand for someone else. In those types of cases, the employer may also be liable for Damages. In a medical malpractice case, it’s typically the insurance company for the doctors or hospitals that pay.
Punitive damages cannot be collected by heirs in a wrongful death case. However, if there was some economic loss (Lost wages or medical bills) before the decedent died, then punitive damages can be obtained in the proper circumstances in what is known as a survival action. Further information on this can be obtained by conferring with an experienced wrongful death attorney.What is wrongful death malpractice?
Wrongful death malpractice typically means a mistake by a hospital, doctor or other medical providers that results in the death of a patient. Sometimes the legal focus needs to be on whether the doctor or provider made a mistake. Other experts in the same medical specialty will need to be hired to opine that the treatment was beneath the standard of care of other doctors or hospitals.
Sometimes, the medical mistake is obvious but whether or not the mistake “Caused” the death is not. That’s why it’s critical in every suspected wrongful death malpractice case to get a competent autopsy by an independent person that investigates and concludes on the actual cause of death. Finally, each wrongful death malpractice case needs to be filed within the state’s time limit or statute of limitations. This varies from state to state.
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Editor’s Note: This page has been updated for accuracy and relevancy [cha 10.9.20]