Losing a loved one is not easy, but losing a relative due to a medical facility or expert’s negligent or reckless conduct can be emotionally devastating. Fortunately, you can file a legal action (wrongful death case) and recover the much-required source of assistance. Phoenix Personal Injury Attorney Law Firm understands this and recognizes that no compensation amount or trial verdict will compensate for your loss and can protect your rights. We can work diligently to recover damages like lost wages, medical expenses, funeral costs, and reasonable compensation for loss of moral support, companionship, and love.
What is Wrongful Death?
According to Arizona Revised Statutes 12-611, wrongful death is an incident where you would have adequate evidence to bring a personal injury lawsuit if the injured person had not passed away. In this case, the defendant is liable for damages if the demise is due to negligence, default, or wrongful conduct.
When a surviving family member files a lawsuit, they step into the deceased’s shoes. Consequently, the relative must verify liability in the same manner the deceased would have had to prove responsibility had they survived the wrongful or negligent conduct. For instance, if your loved one died due to the defendant’s negligence, you should verify the elements of negligence.
Intentional Vs. Unintentional
Wrongful death can be due to the defendant’s unintentional or intentional act. For example, a situation when an individual intentionally injures another, and the alleged victim subsequently succumbs to the injury can be deemed wrongful death. Demise can also be due to negligence, like failing to fence around a public swimming pool where a minor subsequently drowns.
If wrongful death can be due to an intentional act, you might wonder how murder differs from wrongful death. The difference is that wrongful death is a civil charge while murder is a criminal charge. The results of one do not necessarily impact the other.
How Does a Survival Action Differ from Wrongful Death
In a wrongful death claim, the deceased’s surviving relatives receive compensation for personal and financial losses resulting from the loved one’s demise. While a survival action is similar, it is a different type of legal action where the deceased’s estate pursues compensation for the decedent.
You can use a survival action to hold the negligent party responsible for the decedent’s lost income, medical expenses, and other losses from the incident’s date until the deceased’s death.
In the survival action, you can also hold the defendant liable for your loved one’s burial expenses. However, you cannot recover the decedent’s pre-death pain and suffering.
Medical Malpractice Related-Wrongful Death
Medical malpractice happens when medical experts act outside the scope of acceptable treatment for a patient’s health conditions. Moreover, it can be due to medical negligence or incompetence, which describes the failure to meet the proper standard of care for a specific situation.
The medics establish consensus for suitable treatment techniques, medications, and methods. A physician who uses an unapproved, untested, unrecognized, or experimental treatment should have compelling reasons. Otherwise, they are engaging in medical malpractice.
Commons causes of medical malpractice-related wrongful death cases include the following:
- Prescription errors — Pharmacists and doctors should ensure that patients receive the correct dosage and form of medication. Additionally, they should account for your prescriptions and pre-existing conditions to check for potential drug interactions.
- Delayed diagnosis or misdiagnosis — Typically, most diseases reflect the symptoms of other conditions, and diagnosis occurs with an elimination process. To avoid misdiagnosis, physicians should have good judgment skills when assessing your ailment and act quickly before your condition worsens.
- Surgical errors that require revision surgery — These mistakes include leaving a surgical instrument in your body after an operation, operating on the wrong body part, using unsterilized surgical equipment, or causing injuries during the procedure.
- Gross negligence — It applies to mistakes due to inattention and extreme incompetence. In most medical malpractice-related wrongful death cases, there are mistakes that an individual with proper medical training can prevent, like administering medication when a patient is allergic to the drugs, reading an x-ray backward, or amputating the incorrect limb.
- Informed consent violation — Physicians should advise patients of different medical treatment options, the most effective treatment technique, and the potential risks and complications of the suggested treatment. It helps a patient to make informed decisions regarding their healthcare.
You should carefully identify the defendant as a plaintiff in wrongful death that stems from medical malpractice. For instance, sometimes, it is beneficial to take legal action against the physician and the medical facility where they work. Some wrongful death claims can focus on the hospital independent from the treating doctor, including the following:
- Poor oversight from the facility’s leadership for staffing, firing, or hiring.
- Failing to establish proper sanitation and safety measures in the facility.
Wrongful Death of a Fetus
You can also file a wrongful death case for a fetus. While it is challenging to quantify the financial loss of losing your child unexpectedly, it is even harder to determine the economic contribution your child would have made to your family throughout their lifetime.
You can file the claim if you:
- Believe your baby would have lived if not for the doctor’s negligence during labor.
- Believe that the doctor in charge prescribed medication that resulted in your child’s demise.
Who Can Bring a Wrongful Death Case
Since the deceased cannot file the lawsuit, it leaves the question, “Who files a wrongful death case?”
The law limits who can file the claim. People allowed to file the civil claim include:
- The deceased’s spouse.
- The decedent’s surviving children.
- The deceased’s guardian or parent.
- Personal representatives of the decedent’s estate.
- Personal representatives of the decedent’s spouse, parent, guardian, or children.
As you can see, numerous persons cannot be awarded wrongful death compensation, including siblings, grandparents, common-law spouses, and siblings.
Sometimes disputes can arise between relatives over who should file the lawsuit. Typically, the court will allow only one lawsuit. If at least two lawsuits are brought, the judge will consolidate all the claims into one.
What Happens If the Decedent Has a Will?
Determining who can file the case also depends on whether the deceased had a will. If they did, the court would appoint a personal representative or executor to administer the estate. Then the appointed executor can file a wrongful death lawsuit for the deceased.
Proving Wrongful Death
Wrongful death lawsuits allow surviving beneficiaries to obtain financial compensation as a form of justice against the defendant. However, you should prove the following elements of the crime:
Duty of Care
The legal phrase means a person’s legal responsibility or obligation to exercise reasonable care. In this case, the defendant physician owed the decedent (patient) top-notch standards of care per medical industry rules.
Breach of the Duty
It involves an omission or action that deviates from how a prudent and reasonable person would have acted in similar circumstances. Additionally, the breach of duty can involve malicious, wanton, reckless, or intentional wrongdoing.
Actual or Proximate Cause
You should prove the defendant’s conduct was the primary or proximate cause of the deceased’s death. You do not have to establish that the physician planned to cause the death. Instead, you should present proof of a relationship between death and the breach. That means your loved ones would probably be alive were it not for the negligent physician’s act.
You Suffered Damages
The last element you should prove is that you suffered damages.
Damages awarded in Arizona wrongful death claims are classified as economic or non-economic damages.
Typically, economic damages include the amount paid to you to cover financial losses related to the demise. These damages include:
- Medical expenses.
- Lost benefits and income the deceased individual would have made if they had survived.
- Burial and funeral costs.
Non-economic damages are more challenging to quantify and compensate for the intangible losses incurred by the deceased’s family due to the death. These damages include:
- Loss of household services the decedent offered.
- Loss of the deceased’s affection, companionship, guidance, comfort, and love.
- Survivor’s pain and suffering.
Unlike other states, Arizona does not cap the compensation you can receive for your claim.
Pieces of Evidence You Can Use to Prove Medical Malpractice-Related Wrongful Death
It is the plaintiff’s burden to establish the case by a preponderance of the evidence. Some of the pieces of evidence you can use to prove the wrongful death lawsuit include the following:
The deceased’s medical records are essential evidence in a wrongful death case. With an accurate analysis of medical records, your competent attorney can identify points to confirm that the deceased’s injuries are connected to the negligent party’s conduct.
Medical malpractice-related wrongful death cases require records like doctor’s notes, records, test results, evaluations, consultation records, and prescription details, among other healthcare documentation.
Your lawyer will require as much information as possible about your loved one's death. A copy of the official death certificate can help since it states the cause, time, and date of the death.
Tax Returns and Pay Stubs
Financial records like pay stubs and tax returns are essential for your lawyer to determine the value of your lost wages, financial losses, and wrongful death claim.
Your lawyer can also collect an autopsy report to indicate where a medical mistake caused the death. A toxicology report will provide clear evidence.
Other reports, records, and documents to prove wrongful death include:
- Family records.
- Videos or photos.
- Witness statement.
- Police report after an investigation.
What is the Average Settlement for Wrongful Death Lawsuits in Phoenix?
A family that has lost a loved one would ask, “What is the average settlement for their wrongful death case?”
Asking the question is understandable because the family has to decide whether to file the lawsuit or not.
Every wrongful death claim is unique, making it challenging to estimate your case's worth. However, most payouts range between $500,000 and $1,000,000, even outside the court. The compensation amount depends on the facts surrounding the demise, the type of damages sought, and the jury or judge sentiment of the involved facts.
Settlement amounts in wrongful death cases will consider various factors, including:
- The deceased’s age, work expectancy, life expectancy, habits, and earning potential.
- Total burial and funeral expenses incurred.
- Value of household services — If the deceased was the family’s breadwinner, the settlement amount awarded is often large to compensate for the loss of income. Also, if your wife, for instance, might have done laundry, you will require hiring a person to perform the chore after her demise. In this case, you can seek compensation to foot the expenses.
- The loss of benefits or gifts that you would have received had your loved one lived.
- Future monetary support — If you depend on your relative for financial support, then their demise will significantly impact your life. You can receive compensation equivalent to the amount of monetary support you were expecting to receive.
- Your relationship with the deceased — Courts analyze the intimate relationship between the survivors and the deceased. A child or spouse will recover more compensation than friends or distant relatives. The court will consider losses of the consortium, moral support, care, companionship, affection, and guidance.
- Cause of the demise — A prolonged or painful death can lead to higher settlement. You can also receive a higher settlement if the demise was caused by malice.
Factors that Could Reduce Your Settlement Amount
Sometimes, you could be awarded less compensation than you deserve due to the following reasons:
- Your relative contributed to the medical malpractice.
- You waited too long to file the claim. You must bring the case within a two-year deadline to receive money.
- You did not engage a skilled lawyer.
Wrongful Death Settlement Calculators Do Not Work
There are numerous wrongful death calculators on the internet; you only need to enter the deceased’s information, and the calculator estimates the settlement amount you would receive. Nevertheless, the calculators are inaccurate, and here is why:
- Every case is unique, and settlements vary based on circumstances. Therefore, there is no specific average settlement date the calculator can pull from.
- Insurance providers do not follow the formulas. Instead, they often offer lowball offers to increase their profit margin.
- Most wrongful death claims do not proceed to trial. The scope of the settlement largely depends on your attorney’s resources and experience.
Is Compensation Amount Taxable?
The amount is compensatory and is intended to make the deceased’s family or estate whole again. Therefore, taxing the damages undermines the purpose of awarding them.
However, punitive damages are taxable. These damages go beyond making the plaintiffs whole and act as a punishment to the defendant.
How Compensation Amount is Distributed
The deceased’s estate can be entitled to compensation for specific losses like pre-death medical expenses, while surviving relatives can receive compensation for loss of consortium.
The court allows eligible parties to distribute the compensation amount fairly, provided they agree. The settlement amount should be distributed proportionately to every qualified party's loss due to the decedent’s demise. It can consider the loss of financial support from the deceased and the loss of emotional support, companionship, and other losses the beneficiary has incurred.
However, the court will decide in the absence of compromise.
Statute of Limitations (SOL)
SOL is the timeframe for filing your claim. In Arizona, the statute of limitations for wrongful death is two years from the date of death.
If the deadline has passed and you attempt to bring the case anyway, the judge will almost certainly dismiss the claim. However, some exemptions can effectively extend the filing deadline, including:
- The defendant relocated or moved out of Arizona.
- You were not aware of the incident that caused the death until after your relative’s demise.
If you believe you should be exempt from the SOL, please seek the assistance of an experienced wrongful death lawyer.
Trial Vs. Settling Your Wrongful Death Claim
Typically, most wrongful death cases are settled out of court without proceeding to trial.
Settlement is often in the decedent’s estate’s best interest for many reasons. Filing a lawsuit requires preparation, and depending on your claim, you should take depositions, submit court filings, and require expert testimony to prove the case. All these issues cost money, which would be subtracted from your compensation amount.
Whether to proceed to trial or not is a family decision. Your compassionate wrongful death attorney can assist you in weighing the benefits and drawbacks of settlement and trial. They can talk to you about previous jury verdicts in identical cases and guide you on what to expect with the court process and the costs involved. Finally, they will tell you whether your settlement offer is fair and how to maximize your recoverable compensation amount.
Find an Aggressive Wrongful Death Lawyer Near Me
You are already facing a lot following the demise of a relative or friend. The grieving process is challenging, but expected financial constraints complicate the matter. While you are grieving, Phoenix Personal Injury Attorney Law Firm can assist you in building your case around the evidence to meet the burden of proof. Hiring us can increase your chances of recovering the compensation you deserve. Please contact us at 602-641-9589 to learn how we can help you.