Determining Fault In An Accident

What You Need To Know When You Contact A Wrongful Death Attorney

If you have lost a loved one and think you may be entitled to pursue a wrongful death claim because of the circumstances under which they passed away, it's a good idea to have a bit of background about how wrongful death law works. Here are some basic facts about wrongful death claims that you should know before contacting an attorney. 

Wrongful Death in American Law

Wrongful death is a legal claim in which one party charges that another is liable, or responsible, for someone's death. In the American legal system, wrongful death is a tort, which means it is a civil claim, not a criminal one. Pursuing a wrongful death suit does not mean that a criminal case cannot also be mounted against the defendant, or the accused. In many cases, both wrongful death and criminal charges, such as manslaugher or murder, are brought forth. 

A big difference between wrongful death and criminal cases is how a verdict is handed down. In a wrongful death case, the court merely needs to find that the bulk of the evidence points to a guilty verdict. In a criminal case, such as a homicide, the defendant has to be found guilty without any reasonable doubt. Because of this, it is sometimes felt it is easier to win a wrongful death case as a tort than a criminal case involving the same death. 

Medical Malpractice and Wrongful Death

Many people confuse medical malpractice and wrongful death. While they can overlap, the two are not necessarily synonymous.

Take, for example, the case of a malfunctioning cardiac stent that is placed to open a clogged blood vessel in the heart, a common intervention to prevent a heart attack. If the stent malfunctions and a patient dies as a result of the manufacturer's negligence, the patient's family can sue the stent maker for wrongful death.

Unless, however, the cardiologist who implanted the stent knew it would fail or put it in wrong, the physician did not perform medical malpractice. On the other hand, if a doctor knowingly uses defective devices or does not perform a procedure properly, they may be subject to a malpractice charge, which is a specific type of wrongful death.

State Laws and Wrongful Death Suits

You should be aware that state laws vary widely regarding wrongful death cases. Be sure to find a lawyer that is familiar with the subtleties of your state laws, and don't assume that a case you read about in another state would apply to your situation.

One of the biggest areas in which states differ is the statute of limitations regarding initiating a wrongful death case. Some states have limits on how long after a death anyone can pursue wrongful death charges. There are also varying exceptions to these statutes, especially involving cases of product liability. Often, the dangers or inherent failures of a product, like the hypothetical cardiac stent above, aren't known until many years later, so the window for bringing charges is usually longer. 

Another area in which states differ is in cases of suicide. In some states, actions that caused the deceased emotional distress and precipitated a suicide can be punished by a wrongful death guilty verdict. 

The Future of Wrongful Death Law

It may surprise you to know that wrongful death is a relatively new type of law. The first use of wrongful death law was in England and Wales, with the Fatal Accidents Act 1846, also known as Lord Campbell's Act. This was the first time in history that a law allowed relatives of the deceased to collect damages for their loved one's death. 

Because wrongful death law is still being explored, new precedents are being frequently set. In seeking a wrongful death attorney, it's a good idea to find one that is up to date on the very latest case law, as it may help you make your case. 

If you think you have a wrongful death case, it is your right as an American to pursue it by contacting an attorney. By understanding better how wrongful death law works in the United States, you can both be more discriminating in your selection of an attorney and work more efficiently once you find one.