What Constitutes Wrongful Death in DC?
John Yannone answers questions about what constitutes wrongful death, how to bring a wrongful death claim, and how damages are determined.
What is Wrongful Death?
Wrongful death is death due to the negligence of someone. It could be a medical malpractice case where a doctor breached the standard of care. If the person had lived, it would be a medical malpractice case, but because the person died as a result of the negligence, it’s a wrongful death claim. Wrongful death in most jurisdictions is statutory meaning that there are very specific statues that say how and under what circumstances you can bring a wrongful death claim and what the statute of limitations is for it.
What are Some Common Scenarios of Wrongful Death
Again, it’s any personal injury claim that results in death to a person. Examples would be catastrophic auto accidents that end up causing the death of someone medical malpractice that unfortunately leads to the death of someone, or work-related accidents, like a construction accident on the job, that results in death. It’s a wrongful death action as a result of the damage being death to the victim, caused by the negligence of someone else.
How is a Wrongful Death Claim Brought?
In court, it’s brought like any other case. Since most of the time it’s statutory, there are specific rules, regulations, procedures, and substance of law that are controlled by the statute. But procedurally, it’s brought like any other case. Again, there may be a different statute of limitations for wrongful death. For example, if it’s medical malpractice you would have a medical malpractice statute of limitations, but if it ends up resulting in death, then you have a wrongful death statute of limitations. You’ve got to figure out which is applicable, or are both applicable, and which statute controls it.
Who Brings the Claim on Behalf of the Deceased?
That depends on the jurisdiction. In DC and Virginia, the personal representative of the estate brings the wrongful death action. In Maryland, the wrongful death beneficiaries bring the wrongful death action. Estate law determines who those beneficiaries are, and in what order they can bring an action for wrongful death. It would start with the wife and minor children. If there are neither, it goes to parents. If neither parent is alive, then it goes to brothers and sisters and then nieces and nephews. So it goes down a pecking order. It’s different in different jurisdictions as to who has the right to bring which cause of action. The wrongful death action is for the victim’s survivors. The survival action is essentially the action for conscious pain and suffering, medical bills, lost wages, and funeral expenses that the deceased could have brought had he or she lived. Again, the wrongful death being brought by the survivors is for loss of love and affection, for loss of society, companionship, advice, and those kinds of damages. The difference being that in DC there’s no recovery for grief whereas there is in Virginia and Maryland. In Virginia, you actually have to elect between wrongful death damages and survival actions, whereas you do not in DC or Maryland. So there are definite differences amongst the jurisdictions in which we practice as to the nature of the actions, the procedure to bring them, and the damages that can be recovered.