While statute of limitation and procedures vary between states, wrongful death lawsuits assist spouses, family members, and loved ones with recovering monetary damages from pain and suffering, lost income, mental anguish, loss of companionship, and medical expenses. In these civil lawsuits, the plaintiff sues over negligence, misconduct, or recklessness rather than criminal charges, although the process of gathering evidence in the pre-litigation phase is similar between these two types of cases.
After an attorney accepts a wrongful death case, an investigation into the family member’s death commences. The attorney and plaintiff must provide sufficient proof the defendant’s action, or in action in some cases, directly resulted in the family member’s death. While the standard of proof is lower for civil than criminal lawsuits, a reasonable doubt concerning evidence may dismiss the settlement entirely.
While a lawyer and even a private investigator assist with gathering evidence, the plaintiff filing a wrongful death lawsuit must take the following two significant issues into account:
1. Medical Records
65 percent of all wrongful death claims concern medical malpractice, with another 16 percent for motor vehicle accidents. Obtaining medical records for the deceased, however, often proves to be challenge for family members, even when an attorney is involved. Because of doctor-patient confidentiality, physicians ordinarily cannot disclose to an outside party any information about the patient.
In certain instances, surviving spouses, next of kin, or an estate representative may waive this restriction to access the deceased’s records, although this varies by state. Certain states still dispute whether an attorney may request the deceased’s medical records.
Aside from access by next of kin, a surviving spouse, or an estate representative may be able to access the deceased’s records, doctor-patient confidentiality may be waived if the deceased’s health is relevant to the wrongful death suit. In these instances, the physician must provide the decedent’s records, unless any information would disgrace the memory of the deceased.
2. Value of the Decedent
Part of any wrongful death lawsuit involves determining the decedent’s value. Years ago, the amount correlated with the deceased’s income; with stay-at-home parents, children, and the elderly, however, aspects like guidance and companionship are further taken into account to establish “pecuniary loss.”
Because this aspect may be contentious, it is advised that the plaintiff and lawyer seek out testimony from experts like economists to determine the full amount the family member contributed, even if he or she did not have a full-time income to support a family.