Wrongful Death

English “common law” generally denied all claims of a person upon his/her death and denied any third party claims. If someone argued that a person’s death was caused by another, the courts generally responded with the simple fact that the person was now dead and, therefore, damages were not necessary. This concept continued until 1846 when England passed the Fatal Accidents Act. Today, every American state now has a statutory remedy for wrongful death modeled after the English version of the Fatal Accidents Act.

Wrongful death acts are generally drafted in one of two forms. The majority of states have a “wrongful death act” that creates a cause of action in favor of the decedent’s personal representative. This person is able to sue and be sued in the name of the deceased person just as if the person were still alive. A minority of states have “survival acts” which operate under the theory of preserving the claim vested in the decedent at the moment of death. Unfortunately these statutes only allow for claims by the decedent for pain and suffering. If the death was instantaneous, there is a presumption against the cause of action.

Additionally, many states limit the beneficiaries of wrongful death claims. For example, Michigan offers a very liberal approach to wrongful death and allows the spouse, children, parents and siblings to all recover for a wrongful death. Florida is more restrictive. For example, if a claim is filed on behalf of a deceased spouse, without minor children, only the surviving spouse is entitled to recover damages. If there are minor children, they are also allowed to recover damages.

The Wrongful Death Act is a statutory claim allowing surviving beneficiaries to file suit against the person or persons causing the death. Alleged medical malpractice claims resulting in death will generally result in a wrongful death claim. The personal representative of the estate of the deceased person brings the cause of action on behalf of the estate and all beneficiaries. Only the personal representative has the right to direct the cause of action as the plaintiff. All other aspects of medical malpractice defense apply. The plaintiff is still required to prove by a preponderance of the evidence that the healthcare provider owed a duty to the decedent, breached the duty, and proximately caused damage to the decedent prior to death.

Defending wrongful death claims can be very tricky and emotionally charged. Often the heirs take the stand and try to emotionally move the jury with the story of their loss. A skillful defense attorney can effectively cross examine these witnesses without leaving a negative taste in the juror’s mouths.

Chapman Law Group is experienced in all forms of medical malpractice defense, including wrongful death claims. If you are facing a potential lawsuit involving wrongful death, medical malpractice, or anything related to healthcare, please feel free to call Chapman law Group. One of our experienced team members would be happy to talk with you. Or visit us on the web at www.chapmanlawgroup.com. For over 25 years Chapman Law Group has successfully defended hundreds of complicated medical malpractice claims with exceptional results. We understand the complexities of health care and work hard to defend your good name and the right to continue to practice your chosen profession.


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