Article Updated: October 9, 2022
Steps In A Wrongful Death Lawsuit
Chances are that you are reading this page because someone you love has died and you believe it may be a wrongful death due to medical malpractice or negligence.
Understanding wrongful death cases can be complicated which only adds to the stress you experience. This summary is written by a wrongful death lawyer who has handled over 50 wrongful death claims.
This article will help you understand how a wrongful death lawsuit works, how to file a wrongful death claim, and the steps in wrongful death lawsuits.
You will also find answers to common questions regarding wrongful death lawsuits that can help you. Should there be any additional information that you need and cannot find I am available round the clock to offer you support and answers related to wrongful death cases by phone, via email or by filling out the contact form at the bottom of this page.
Clickable Table of Contents
Wrongful Death Lawsuit Steps
9 – About the Author
Wrongful Death Lawsuits
Wrongful death lawsuits occur when the surviving family members of a person who has died go through the courts to seek justice for their family member. If it is believed that the death was caused in any manner through violence, neglect, dereliction of duty, or carelessness it is possible to bring up a wrongful death lawsuit.
Knowing how to file a wrongful death lawsuit and what process it will entail depends on what state the death took place in as well as who is filing the wrongful death case to start with. Based on these pieces of information, the process of proving a wrongful death case can begin.
Proving A Wrongful Death
Before you can get to the steps in a wrongful death lawsuit it is important to understand the what the elements of a wrongful death case are and how they each need to be proven:
◊ Negligence: Negligence must be proven in order to know who to hold accountable for the death and also to know who pays for a wrongful death lawsuit. This negligence can be whole or partial, but what is most important is to be able to show that the death was the result of carelessness or cluelessness of some form.
◊ Breach of Duty: It is also vital to show that the person who was careless or negligent owed a duty to the individual who was the victim. For example, a nursing home worker owes a duty to the residents of the facility and if they fail to pay attention and offer care to someone and this leads to their death, it is an example of breach of duty.
◊ Causation: You will need to show a clear connection between the death of an individual and the actions that were taken or not taken by the person who breached their duty. This connection will create an important part of your lawsuit arguments.
◊ Damages: In order to win a wrongful death lawsuit, you have to show that there were damages that need to be compensated for. Any number of losses can be applied here including: loss of income, loss of potential earnings, burial costs and funeral expenses, medical bills, hospitalizations, loss of inheritance and guidance, and any pain and suffering that took place before the individual dies.
It is very important to quickly and efficiently collect all related evidence to all four of these elements of a wrongful death. Without adequate evidence that is compelling, there is little chance of proving your case.
This is even more pressing when you are in a complicated wrongful death case where you are suing on behalf of a deceased person through their estate, opposed to being a direct family member
The most important aspect of how to file a wrongful death claim is to ensure you have all needed evidence collected so your attorney can build the strongest case on your behalf.
When Can You File A Wrongful Death Claim?
A wrongful death lawsuit can be filed in different scenarios such as medical malpractice, auto accidents or in unintentional injuries.
In each case, so long as the needed steps are taken, such as having negligence, causation, breach of duty and damages, there can be steps taken immediately to start a wrongful death claim.
These cases have increased in some areas more than others, particularly in nursing homes as there has been a large increase in recent years of wrongful death claims against such facilities. A part of this is due to the lack of quality that many care facilities have in both their training and hiring as well as their overall facility standards/
It is important to know that in nursing home wrongful death cases the costs of litigation are substantial and for this reason it is vital that an experienced attorney helps with the speedy start and collection of evidence to ensure your case is handled properly.
◊ Medical malpractice: When you are in the care of a nursing home, a hospital or a rehabilitation center and the people in charge of your care fail to do their job in a way that adheres to standards and expectations they are being negligent. If this negligence then leads to death, you have a wrongful death lawsuit and can recover financial compensation from the facility, the medical Practioners involves and/ or the hospital or nursing home’s malpractice insurance policy.
◊ Auto accident: If your loved one is killed in a car accident and it is found that the driver of the other vehicle was negligent in part of whole, you can also collect compensation from their insurance company to cover damages caused by the accident.
◊ Unintentional injuries: It is also possible that any number of interactions with anything from home care takers, to building management can also be responsible for a wrongful death if their actions were negligent and led to the death of your loved on.
What To Expect In A Wrongful Death Lawsuit
In a wrongful death suit you can expect to be faced with considerable pushback from the defendant’s side who will work hard to show there was no negligence on their part. This is even harder of a situation when the defendant you are facing is a nursing home or a hospital as they have the resources to utilize a team of legal experts on their side.
One of the first things that they will likely do is rely on all of the fine print in their paperwork and contracts to dissuade you and complicate a settlement in a wrongful death case.
The process will require a great deal of attention paid to gathering documents and information and making sure to understand your rights in the wrongful death process.
Starting The Wrongful Death Lawsuit Process
The first step in understanding how to file a wrongful death claim is knowing which kind of wrongful death you are dealing with.
Generally, there are two types of wrongful death statues in most states. These two statues are either the “Wrongful death statues” which can be brought forward by direct family members, and the “Survival statues” which can be brought forward by the estate of the deceased.
Who may recover what varies from state to state even though most states allow for both wrongful death statues and survival statues to be used, ultimately, who recovers what depends on where the death takes place.
Therefore, suing on behalf od a deceased person is something that you need to pay special attention to because there may be specific limitations on this depending on your state. Getting this information figures out, i.e., what statues your state has in place, needs to be one of the primary steps in a wrongful death lawsuit getting started.
A part of the reason for this being so important is that who pays for a wrongful death lawsuit will also relate to the issue of who recovers in such cases and who is bringing the suit forward.
How Long Do Wrongful Death Lawsuits Take?
Each one of the steps in a wrongful death lawsuit can take anywhere from a few weeks to a few months. Some cases settle quickly only lasting a few months while others can go on for as long as 1-4 years before there is a resolution.
The longer cases are not always this length because of the need for trial, and can just be delayed as evidence is collected and a thorough investigation into the death is conducted. These kinds of cases are important and each stage is taken very seriously.
One thing to keep in mind is that if a hospital or nursing home is promising you a swift settlement process it is often related to the fact that they are attempting to lowball you with an offer that is much smaller than you should settle for.
While they may make it seem that the fast settlement is in your favor as the process will end quickly and you will get your settlement fast, in reality they are only acting in their own interest and hoping that you will be enticed by this offer of speedy settlement.
You should avoid offers that seem like they can close in a few weeks as this is not enough time for you to even understand the background and full circumstances of the wrongful death that has taken place.
A settlement that is thorough and compensates you properly will take time and will take a few months to a few years to come to a conclusion.
Who Pays For A Wrongful Death Lawsuit
In a wrongful death the person who pays for the wrongful death lawsuit will be the individual who is found to have been negligent and who breached their duty that caused the death to take place.
In some cases this will mean that the liable party’s insurance or employer will pay the actual lawsuit settlement, which is particularly true when the liable individual was working for or in a hospital or nursing home where the negligence took place.
Wrongful death case values are not easy to predict in terms of payouts as no absolute formula for a wrongful death settlement amount has been crafted. Instead, the jury makes recommendations based on at best vague statutory rules that exist in each state related to wrongful deaths.
Even values of wrongful death settlements where the deaths are similar across various vases result in vastly different payouts. This highlights the importance of competent counsel throughout the settlement process because they are the main influence in how successful a wrongful death settlement ultimately is.
Suing on behalf of a deceased person
Most wrongful death lawsuits are brought directly by a living family member. In some cases it is a person who is in charge of or has permission to make decisions for a person’s estate who makes this decision.
Not all states however allow the relatives of a person who has died to file wrongful death lawsuits on their own or the person who is in charge of the estate.
In some states there is the need for a personal representative or an executor who will oversee everything that is related to the affairs of the individual who has died. It will therefore be this individual who will go on to file a wrongful death lawsuit on behalf of the deceased estate.
Step-By-Step Guide To Wrongful Death Lawsuits
Depending on the state you live in, there may be more or less steps in the wrongful death lawsuit process.
For those in states where they cannot bring the claim on their own, there will be a need to establish a probate estate that will bring the suit on behalf of the estate.
In states where this is not needed, a direct filing of the case can happen by the relatives of the deceased.
There are four major steps in a wrongful death lawsuit which are the prelitigation stage, the negotiations stage, the active lawsuit stage and the trial stage.
It can be confusing to know how a wrongful death lawsuit works and whether or not you will need to go through every one of the listed steps. However, not everyone will go through all of these stages as it is possible to come to a settlement at any point in these steps.
Step 1: The Pre-Litigation Phase of a Wrongful Death Lawsuit
If you are suing on behalf of a person or you are in a state that requires someone other than family to file a claim you will have an additional step in a wrongful death lawsuit. You will need to work in this step to ensure you establish or work with the appropriate legal entity to start the process of filing any claims.
For those who are not in such a state that does not have these requirements you can initiate the investigation by contacting a wrongful death attorney. At this point your attorney will help you collect all needed evidence from nursing homes, hospitals, witnesses, police reports and more. Depending on how strong the evidence is that is collected at this stage, it is possible that a settlement in your favor can be agreed upon between the you and the defendant.
Step 2: Negotiating for a Possible Pre-Lawsuit Settlement
If your case does not end in step 1 you will move onto step 2 where your attorney will inform the relevant parties that you are going to pursue financial compensation for your loss. Your attorney will make it clear to everyone at this stage that you are willing to take your case to trial should an amenable solution not be found.
At this stage it is very important to have an attorney who has a proven track record of being able to negotiate effectively so that you do not end up with a settlement that undervaluing your claim.
Step 3: If Pre-Lawsuit Settlement Fails, Wrongful Death Lawsuit Begins
If a negotiation at stage 2 does not work out in your favor, the next step is to move forward with formal litigation. This step has multiple parts to it which include:
Preparing a summons and complaint that will be served to the relevant defendants
Prepare for discovery where there will be evidence given from both sides to each other. This can include evidence such as documents, case-related materials, records of actions and behaviors of all parties related to the wrongful death and written questions answered under oath called interrogatories.
Depositions are conducted in which individuals from both sides are questioned under oath.
Pre-trial motions are submitted related to a number of issues including jury selection, what claims can move forward into court and pretrial conferences are held to address what is needed in court and to try for last minute settlement possibilities.
Step 4: Going to Trial For A Wrongful Death Lawsuit
The final step of a wrongful death lawsuit when all other steps have not created a solutions, is to go to trial and allow a jury to make a decision on the case. In most states the jury’s decision is the final word, but in some states there is also the possibility that an additional step can exist where you can challenge the verdict the jury ended with and appeal their decision.
Wrongful Death Lawsuit Timeline
The steps in a wrongful death lawsuit are fairly straightforward and simple. While some cases can be more complicated than others and require additional steps, like a probate or an appeal, most cases will be solved within one of these basic 4 steps.
Wrongful Death Lawsuit Q&A
How do I file a wrongful death claim?
In order to file a wrongful death claim for a deceased individual you need to first make sure you are in a state that allows you to file the claim directly. If you are not in a state that needs this you can contact an attorney who will help you file the summons and complaint you need to start the case. If you are in one of the states that needs an executor or a probate you need to first secure a an entity that can then have the right to file the claims for you.
How does a wrongful death lawsuit work?
A wrongful death lawsuit requires you to show a number of facts such as causation, negligence, breach of duty and damages so that there can be claims brought against the individual you believe caused the wrongful death. Once this has been established you will need to file appropriate paperwork and notify the defendants of your intentions so that the case lawsuit can begin its transition into an investigative phase. After this it is possible that the case can end with a settlement agreed upon between the parties, or will need to go to trial.
Can you sue on behalf of a deceased person in a wrongful death lawsuit?
Yes, you can sue on behalf of a deceased person in a wrongful death lawsuit. In most cases such claims are brought by family members directly, but in other cases it is possible that a representative of the deceased’s estate will bring the lawsuit forward.
Who pays for a wrongful death lawsuit?
A wrongful death lawsuit will usually be paid for either directly by the person who is being held negligible or through the insurance that covers the entity that they work for, i.e. a hospital or nursing home’s malpractice insurance.
What are the main stages of a wrongful death lawsuit?
The main stages of a wrongful death lawsuit can be broken down into fur segments. The first of these is a pre-trial phase, the second is a negotiation phase, the third step is an active lawsuit phase and the final step if needed is a trial phase.
Who is the burden of proof on in a wrongful death lawsuit?
The burden of proof will be on the claimant to show that there was in fact negligence that then directly led to the death and that the person who was negligent in fact had a duty to the person who passed away. Evidence is needed to prove each one of these requirements so that there can be a successful wrongful death lawsuit.
Maximizing Your Wrongful Death Lawsuit
Maximizing your wrongful death lawsuit will rely on understanding how to file a claim in a timely and organized manner.
I am here to offer you my years of experience working with people who just like you wanted to get compensation that they deserved after there was a wrongful death in their family.
If you need to talk about your chances of successfully filing a wrongful death lawsuit and what evidence you need to collect you can contact me anytime to discuss your case with a free consultation.
Call, email, or fill out the contact form below for help.
Reza Davani, Esq.
State Bar No.: #1212110211
Federal Bar No.: #30168
Supporting Literature, Citations & Resources:
Matheson, V. A., Rosenbaum, D. I., & Schap, D. (2015). Wrongful death: Who recovers what, where, and how. J. Legal Econ., 22, 25.
Peeples, R., & Harris, C. (2016). Medical malpractice and wrongful death: some lives are worth more than others. Elon L. Rev., 8, 461.
Stevenson, D. G., & Studdert, D. M. (2003). The rise of nursing home litigation: findings from a national survey of attorneys. Health Affairs, 22(2), 219-229.
Krasuski, A. E. (2004). Mandatory Arbitration Agreements Do Not Belong in Nursing Home Contracts with Residents. DePaul J. Health Care L., 8, 263.
Peeples, R., & Harris, C. T. (2015). What is a life worth in North Carolina: A look at wrongful-death awards. Campbell L. Rev., 37, 497.
About the Author
This nursing home and medical malpractice article was written by Baltimore, Maryland nursing home attorney Reza Davani, Esquire. Mr. Davani received his Juris Doctor degree from a Tier 1 law school, the University of Maryland Francs King Carey School of Law. He received his first license to practice law from the State of Maryland’s Court of Appeals (MD State License No. 1212110211), and just four months later received a federal law license from the United States District Court for the District of Maryland (Federal License No. 30168).
Mr. Davani has been practicing law for over 10 years. He began practicing law by helping clients as a sanctioned student lawyer before receiving his law license, and second chaired his first jury trial in federal court before even graduating law school. He is a registered member of the Maryland Association for Justice (MAJ), the American Bar Association (ABA), the American Association for Justice (AAJ), and was formerly on the MAJ’s Legislative Leader’s Circle.
Mr. Davani has taken over 20 cases to trial in state and federal court, and favorably settled well over 100 cases for injured victims. He has personally helped his clients recover over $15,000,000 in personal injury, medical malpractice, and nursing home abuse settlements and verdicts in Maryland and other states. He is dedicated to fighting for justice, and welcomes the opportunity to help you.
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