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What you should know if you believe a loved one died because of negligence.

Posted on: May 2, 2017 9:16 AM
John Rogers

John Rogers

John Rogers is a former medical malpractice defense attorney licensed in Illinois, Alabama, and Florida. He graduated from law school and began his legal career in Chicago in 2009 and joined Michles and Booth in 2015. While John has worked on both sides of catastrophic injury litigation, he now enjoys representing and working for individuals, as opposed to corporations.

Losing a loved one is a terrible experience. It can be even more difficult when you suspect that something could have been done to prevent it. If you believe that someone is at fault for the death of your loved one, you need to educate yourself on what your options are. In this article, we will discuss what wrongful death is and important information that you need to know.

What makes a death wrongful?

quote from article about deaths caused by negligenceFirst of all, you may be asking yourself what is wrongful death? Well, the state of Florida has codified that Florida Statute 768.16 through 768.26 the Wrongful Death Act and this statute defines the right of action for wrongful death to apply when the death of a person is caused by a wrongful act, negligence, default or breach of contract or warranty of any person.

Now, that statutory definition does very little to clarify what an actual wrongful death claim is and is not.

First of all, the term, while very broad, seems to imply that another party was negligent or at fault for the death at issue. You may want to keep in mind that, in product liability cases, this may or may not be true as the manufacturer or seller of the defective product may be liable even in the absence of wrongdoing.

It’s also important to realize that there are very many different types of legal claims that lead to wrongful death.

For example, simple negligence, medical malpractice, nursing home negligence, or, as mentioned a negligently designed product, among other theories, can all lead to a wrongful death. It’s important to identify the exact, precise claim that you may have because there are going to be distinct elements for each cause of action, there are going to be distinct roles that define who is the proper party, and there may even be different statutes of limitation.

How quickly do you need to start the claims process?

The statute of limitations in the state of Florida is the time limit within which a claim must be brought before it expires.

In general, depending on the personal injury matters, the claimant has four years to bring a claim. However, that time period is shorter for claims based on medical malpractice and claims based on nursing home malpractice, where claimants have only two years to bring a claim.

It’s important to know that bringing a claim based on medical malpractice or nursing home malpractice requires compliance with a pre-suit process and often times consulting with an expert witness and obtaining documents and affidavits in advance of filing a notice of intent.

Unfortunately for many claimants, this requires them to act very quickly to obtain a review, to obtain expert review, and to obtain documents needed to start the claim process well within the two-year statute of limitations.

What are the potential outcomes of a claim?

In a wrongful death claim, the standard of proof and the potential outcomes are going to be specific and determined by the type of claim that’s being brought. In a general negligence claim, it will be necessary to prove:

  1. that the at-fault party acted in an unreasonable or negligent manner
  2. that this unreasonable or negligent conduct caused the death of the decedent

Potential outcomes, again, will depend on the type of claim. One important distinction I’d like to highlight is that, depending on the type of claim that’s being brought, who is a proper claimant can sometimes be illogical and counter-intuitive.

For example, in the world of medical malpractice, the wrongful death of a single elderly individual often leaves no claimant who can personally recover for that loss. Adult children are specifically excluded under the statute, leaving only surviving spouses and minor children as takers under the act.

This is not true, however, for claims based on nursing home negligence or claims based on general negligence. So the potential outcomes of a claim will be highly dependent on what type of claim is being brought, what the elements of a claim are, who the potential takers are, and what potential insurance might be available from the target.

We are here to help.

Please don’t hesitate to call Michles & Booth for a free consultation if you have any questions about a potential wrongful death claim. The attorneys here have a wealth of experience working on behalf of claimants pursuing this type of claim and would be happy to provide any information, answer any questions you might have, and hopefully point you in the right direction.

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