Wrongful Death FAQ

Wrongful Death Frequently Asked Questions

Frequently asked questions about wrongful death lawsuits answered by Sacramento top rated personal injury lawyer Edward A Smith.

Table of ContentsWhat is a wrongful death action?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.If you are looking for an attorney, please visit our page: Sacramento Wrongful Death AttorneyTop of PageCan 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.If you have experienced a wrongful death, you may want to visit our Wrongful Death Page.

Top of PageWhat are the most common causes of 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.
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  • 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.
For more information on this subject, please visit our page: Wrongful Death Attorney Sacramento California

Top of PageFor what reasons do hospitals and Doctors get sued for wrongful death?

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.If you are looking for an attorney, please visit our page: Sacramento Wrongful Death Attorney.

Top of Page

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 students murder. Sometimes colleges promise to provide adaquate 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.If you are looking for an attorney, please visit our page: Sacramento Wrongful Death Attorney.

Top of PageAre 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 amot 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.If you are looking for an attorney, please visit our page: Sacramento Wrongful Death Attorney.

Top of Page Can I find a view of an accident scene after the roads have changed?

My husband was killed in an accident 2 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 anyplace 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 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 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.

Top of Page Are police responsible if someone is killed because they initiated a high-speed chase?

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 chases, they are of very little help to someone severely injured or killed as a result.If a loved one has died a wrongful death, you may want to visit our page: Sacramento Wrongful Death Attorney.

Top of PageHow 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 InsuranceSometimes, 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.LiabiltyWhere responsibility of a wrongful death is contested, litigation will usually be necessary. In these cases, it can take months or even a year or two before theCcase is ready for trial.Ridiculous Valuation of the DeathIt’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 andSimply to delay paying a valid claim.If a loved one has died a wrongful death, you may want to visit our page: Sacramento Wrongful Death Attorney.

Top of PageWhy Can Michael Brown's Family sue for Wrongful Death?

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 inTraining 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.You may also want to visit my personal injury attorney page or wrongful death attorney page.

Top of PageCan Heirs Bring a Survival Action?

I have heard that besides Wrongful Death, the heirs can bring a Survival Action. What does that mean?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 on 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 had they lived, including medical expenses and lost wages, as well as penalties, punitive or exemplary damages.

Top of PageCan 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.

Does a Parent have Standing to Sue for the Death of Their Child?When a person dies due to the intentional or negligent acts of another person, a wrongful death action can be brought. State statutory law has carved out a space allowing wrongful death actions from the common law. The common law generally only allowed for tort claims brought by the injured party. This made it difficult to recover for one's death as they could not bring their own claim after the accident. Although, the law is clear that a wrongful death claim is only available to certain individuals.Since 1992, courts have given standing in wrongful death cases to those persons who were the heirs of the deceased's property. This allows for children, surviving spouse, or parents.Can a Parent Sue if Their Child is Married and Has a Surviving Spouse?This question does not have a clear answer. However, the court's 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.

Top of PageWhat 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

What is a wrongful death?A wrongful death is when someone is killed by the negligence or wrongdoing of another person. Those who were dependent on that deceased, normally children, surviving spouse, or even parents, may be entitled to compensation for the pain, suffering, and loss of wages stemming from the wrongful death.

Top of PageWhat is a Survival Action?

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.

Top of PageCan 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 victims 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.

Top of PageAre wrongful death settlements public record?

Wrongful death settlements are normally not public record. 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. I'm Ed Smith, a Sacramento personal injury lawyer. If a member of your family has been killed in a car accident or any other accident caused by the negligence of another, you may be entitled to compensation for any loss of wages, pain, suffering, and medical expenses that arose from the accident. I have been serving individuals and families in the region of Northern California for over 35 years. I have extensive experience in helping the families of wrongful death victims get the compensation they deserve. Call me today for free and friendly advice. I can be reached at 916.921.6400 or toll-free at (800) 404-5400.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.

Top of PageIs 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.

Top of PageWhat questions are typically asked on a Wrongful Death Intake form?

Here is an intake form that is typically used in many law offices. Wrongful Death Interview Form Law Offices of Edward a. Smith 

Top of Page  Is there a law that governs who can recover for a 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.Top of Page

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 on 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 type 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.

Top of PageCan you show me a wrongful death verdict form that the jury must consider?

Sure, this is the Wrongful Death Verdict form in California:

VF-3905.  Damages for Wrongful Death (Death of an Adult)
We answer the questions submitted to us as follows:

1. What are [name of plaintiff]’s economic damages?

[a. Past financial support that [name of

decedent] would have contributed

to the family: $ ]

[b. Future financial support that [name of

decedent]would have contributed to the

family: $ ]

[c. Past losses of gifts or benefit that

[name of plaintiff] would have

expected to receive from [name of

decedent]: $ ]

[d. Future losses of gifts or benefit that

[name of plaintiff] would have expected

to receive from [name of

decedent]: $ ]

[e. [Name of decedent]’s funeral and burial

expenses: $ ]

[f. Past household services that

[name of decedent] would have

provided: $ ]

[g. Future household services that

[name of decedent] would have

provided: $ ]

2. What are [name of plaintiff]’s noneconomic damages?

[a. The loss of [name of decedent]’s love,

companionship, comfort, care, assistance,

protection, affection, society, and moral

support, [and] [the enjoyment of sexual

relations/[name of decedent]’s training and

guidance] from [insert date of death] to the

present: $ ]

[b. The loss of [name of decedent ]’s love,

companionship, comfort, care, assistance,

protection, affection, society, and moral

support, [and] [the enjoyment of sexual

relations/[name of decedent]’s training

and guidance] from today forward: $ ]

Signed:

Presiding Juror

Dated:

After [this verdict form has/all verdict forms have] been signed, notify

the [clerk/bailiff/court attendant] that you are ready to present your

verdict in the courtroom.

New April 2004; Revised December 2010, December 2016

Directions for Use

This form is based on CACI No. 3921, Wrongful Death (Death of an Adult).

The special verdict forms in this section are intended only as models. They may

need to be modified depending on the facts of the case.

Delete any questions that do not apply to the facts of the case. Normally, this form

should be combined with the verdict form(s) on the underlying cause(s) of action.

If the jury is being given the discretion under Civil Code section 3288 to award

prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,

814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.

This verdict form may need to be augmented for the jury to make any factual

finding that is required in order to calculate the amount of prejudgment interest.

Top of PageHow much are Settlement and Verdict amounts in a Xarelto Case?

There are currently over 20,000 lawsuits pending in federal court involving Xarelto. The cases are consolidated into a multi-district litigation (MDL).  A MDL is when individual cases that have been filed in different federal courts across the country are combined and transferred into one federal court.

When it comes to settlement payouts in mass tort cases, it’s important to know that the amounts are estimates. The range settlement value is estimated between $75,000 and $300,000. However, the settlement amount depends on the severity of the injuries. If the case involves life-changing injuries or death, the value could be in the millions. It also depends on what other similar cases have settled for in the past. In some cases, the drug company does not want to take a chance and settles before letting the case go to trial.

In December 2017, an Indiana couple won a $27.8 million settlement in a lawsuit against Bayer and Johnson & Johnson. The victim was prescribed Xarelto to prevent a stroke. She took the drug for about a year and suffered severe gastrointestinal bleeding.  The Philadelphia state court found the drug company liable for her injuries.

This was the first trial won by the plaintiffs however, the verdict was overturned in January 2018 based on concerns regarding the treating physician’s testimony. The physician testified that warning labels on the package would not have changed his decision to prescribe the drug to the patient.

As it stands, neither Bayer, Janssen nor Johnson & Johnson have yet to declare any compensation in this enormous lawsuit. The companies have not offered any payment to those patients who claimed injuries by Xarelto.

Top of PageCan punitive damages be recovered in a Wrongful Death case in California?

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.

Top of PageWhat is a wrongful death malpractice?

     
  1. Wrongful death malpractice typically means a mistake by a hospital, doctor or other medical provider 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 expert’s 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.
  2.  
  3. 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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