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Texas Personal Injury News

Wednesday, October 7, 2015

10 Things a Wrongful Death Attorney Wishes You Knew

If a family member has suffered as a result of personal injury or wrongful death, bringing a cause of action is not necessarily about personal gain. The individuals or businesses deemed responsible for the wrongful death are often forced into action to prevent the deaths of others, even if they’ve settled out of court. 

Here are some things you should know about personal injury and wrongful death cases.

1) Medical malpractice suits aren’t always about financial gain

As many as 98 000 deaths are caused by avoidable mistakes in the USA every year, leaving patients at the mercy of an imperfect industry when they’re at their most vulnerable. Small practices receive dozens of cases annually in which patients are saddled with treatments that are inappropriate for their needs.

Mental health professionals claim that misdiagnosis not only occurs but prevails in psychiatry, but physicians are almost as likely to veer from standards of care. Financial compensation is imperative because patients are generally left with unnecessary, but steep, expenses at a time when they're too ill to earn salaries. However, medical malpractice suits tend to kick up plenty of negative publicity, which often forces hospitals to reform. This gives future patients better odds of survival. This is wrongful death law at its most altruistic.

2) Criminal and civil cases are mutually exclusive

It’s possible to sue for wrongful death and lay a criminal charge. Civil and criminal law are entirely separate, so if a criminal charge doesn’t result in a successful conviction, you may still win a civil case and vice versa. To claim damages, the plaintiff must prove that:

  • the defendant was obliged to obey the law
  • the defendant didn’t obey the law
  • the defendant’s action caused the wrongful death
  • there was intent or negligence
  • a personal representative for the estate has been appointed

3) It’s not always about breaking the law

Businesses and individuals can be held liable when they’ve been imprudent. For example, medical practices that deviate from standards of care are considered to have behaved negligently. Negligence or imprudence applies to other industries, too. Toyota was forced to recall almost 10 million vehicles in 2010 after having taken too big a risk with its accelerator design. All 34 deaths attributed to the related crashes qualified for wrongful death suits.

4) Loss is a nuanced concept

Wrongful death damages are as multifaceted as they are complex. They aren’t limited to economic loss. In fact, non-economic damages often have a higher value than tangible losses. They can be claimed for

  • loss of love and companionship
  • loss of guidance and care
  • pain and suffering
  • loss of consortium; in this case, damages are awarded when a spouse loses intangible damages like earnings and comfort

Noneconomic damages have very few limits, which only makes the hiring of a highly skilled and experienced lawyer more important. A wrongful death attorney needs a profound understanding of his field and wide knowledge of tort. Punitive damages are recoverable in some states when bad conduct is especially severe. The many nuances involved in the calculation of damages means that expert witnesses play a core role in a case's success.

5) Medical damages aren’t limited to the allopathic healthcare industry

Naturopaths and homeopaths can be sued for wrongful death when they've been negligent or misdiagnosed an illness. These are complex cases, so it’s important that family members protect themselves from being discredited. Anything that’s posted online is fair game in court, so social media sites and blogs should be shut down until the suit is resolved. Any online communication on a public forum is discoverable in wrongful death claims, even on networks that have watertight privacy settings.

6) It can’t wait

There is a statute of limitations on when you can file a wrongful death action. Under most state laws, two years is the maximum, but it’s imperative to contact an attorney as early as possible. Evidence needs to be gathered if the case is to hold water. To avoid the loss of witnesses and proof, hire an attorney straight away.

7) Insurance adjustors don't always work for you

Insurers are in the business of maximizing their profits, which they achieve by spending as little as possible for maximum returns. They don’t necessarily act in their clients’ best interests because this doesn’t always award them the highest returns. An attorney works to ensure that you receive all you’re entitled to.

While insurers consider what a jury would award at a trial, their negotiations usually begin at the lowest settlement possible, which isn’t always the most reasonable settlement possible. To keep costs at a minimum, they often hire attorneys to fight on the side of the person responsible for the wrongful death.

8) Choose a specialist

If you needed brain surgery, you wouldn’t hire a general practitioner to do it. Attorneys are equally specialized, so while you’ll likely find a lawyer who will take on your case despite their area of expertise, it’s best to choose a specialist. The law is constantly evolving, and an attorney who last looked at tort in law school may not be up-to-date with the specific area of law he’s advising you in. Your lawyer should also have experience in trying cases in the applicable state, given that laws vary across the country. An ethical attorney will take your case only if they can handle it well, referring to other lawyers when he or she can't serve you best.

A skilled wrongful death attorney will represent you aggressively, offering you personal attention and a willingness to take cases as far as they need to go to get what you’re entitled to. If successful, your case will not only account for your loss but may prevent others from suffering the same fate by pressuring the offending party into making preventative changes.

Sources:

http://www.forbes.com/sites/stevecohen/2014/06/18/malpractice-lawsuits-arent-just-about-money/

http://www.jointcommission.org/assets/1/6/TJC_Annual_Report_2013.pdf

http://www.nolo.com/legal-encyclopedia/proving-wrongful-death-civil-case.html

http://www.forbes.com/sites/anthonynitti/2012/11/27/tax-court-2-3-million-settlement-payment-for-wrongful-death-of-shareholders-girlfriend-was-not-a-business-expense/


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