Unique Aspects of Wrongful Death Cases in Fairfax
Wrongful death cases are a unique subsection of personal injury actions. There are many things that make wrongful death cases unique in Fairfax County. One of the first things an attorney notices while handling a wrongful death case is that the cause of action is created solely by statute. This means that while some other types of civil claims such as breach of duty, negligence or even an intentional tort claim may arise out of the common law, which developed over centuries of jurisprudence, wrongful death actions are purely a creation of the statutes. Virginia Code has strict guidelines on what a wrongful death action is. As a result, wrongful death cases in Fairfax and throughout Virginia are solely controlled by statute and now by the case law that has developed from courts’ interpretations of the statute.
Investigations for Fairfax Wrongful Death Cases
A Fairfax wrongful death action is going to require a very thorough investigation. It may be more intensive and extensive than any other type of injury case. For example, wrongful death cases arising out of a motor vehicle accident will include a much more extensive and intensive police report. There will be autopsies and there is potential for investigative actions that would not be done in a typical rear-end accident or negligence case, such as chemical studies. That is just one example of an investigative action that is both more extensive, meaning more parties are involved, and more intensive, meaning a deeper look into the facts.
Wrongful death means that a fatality has occurred, and because of that there is also going to be a more detailed investigation than for other types of wrongful death actions, such as those arising out of medical malpractice, an intentional tort, or premises liability, like a serious workplace accident. Wrongful death actions will have more detailed inquiries. There will be public health records and potentially an autopsy. There will be a lot of inquiry involved to substantiate enforcement of the laws, try to determine how the fatality occurred, and determine whether it was truly a wrongful death which occurred as a result of negligence, if it was intentionally committed by the other party, of if the deceased contributed to their own death.
How Wrongful Death Damages Compare to Other Injury Damages
In any other type of injury case there are typically two categories of damages. There are special damages, which are usually quantifiable. Those are damages such as medical bills and lost wages, which are easy to calculate. There are also general damages. General damages in a negligence action are pain and suffering. They are not easily quantifiable. It is difficult to put a number on them, but arguments can be made and evidence presented on how fact finders should quantify these difficult-to-quantify damages.
Damages in Fairfax Wrongful Death Cases
Wrongful death actions in Fairfax are a little different in how damages are handled. In wrongful death actions there aren’t typically very many medical bills. There also may not be general damages in the form of pain and suffering. Damages that can potentially be requested in these cases include damage of the surviving family members, the deceased’s lost wages over their expected lifetime, and damages to the family or personal representative.
Damages in wrongful death actions are typically twofold. They are damages to compensate for how the person’s death affected the surviving members of the family or their personal representatives in the form of lost wages, and compensation in the form of loss of familial relations or loss of consortium.
The second type of damages that are often presented in wrongful death cases is punitive damages. Punitive damages exist to punish the party responsible for a person’s wrongful death. Punitive damages in a Fairfax wrongful death action may occur when, for example, the death resulted from known defects and the known defects were not disclosed, despite knowing that they could cause serious injury or death. That is one example of someone committing an intentional act that led to a wrongful death, and where punitive damages are appropriate.
Dealing With Decedent’s Family
Because these are wrongful death actions, the victim of the case is no longer around to speak to an attorney. It really changes the nature of the attorney’s role, especially at the outset of the case. Attorneys are often called counselors and in a wrongful death action an attorney is truly a counselor. A Fairfax wrongful death attorney’s role is to comfort the family members and the personal representatives of the deceased, inform them about the legal process, and then assist them in filing a claim which follows the law but also meaningfully helps with the loss of their loved one.
Nothing can make up for the loss of a loved one, but the justice system does allow for financial compensation. In the beginning of the case, a lawyer’s role is both as an investigator and a counselor. During their investigation, they will need to decipher whether the decedent financially supported any family members and how their loss affected the immediate family, the extended family and the family structure. The attorney also wants to find out what was expected of the deceased throughout their remaining life.
There are a lot of different things that go into quantifying the loss and talking to the family members about that stage. It is a very difficult and important procedure where a Fairfax wrongful death lawyer often acts as a shield of defense for the family.
When a Fairfax Wrongful Death Attorney Gets Involved
Typically, a wrongful death attorney in Fairfax will be contacted quite soon after the loss. There is usually a grieving period, and it is unusual for a wrongful death attorney to be involved within days or even weeks after the loss of a loved one. Once the grieving process is over and they are able to take the next step, the attorney is typically consulted and begins conducting their own investigation right away.
Because the statute of limitations to file a wrongful death action is two years, the attorney does not necessarily need to file a lawsuit right away. Typically a lawsuit is filed after there is a certain amount of investigation into the facts and the potential damages available. Also, the attorney will look into insurance and other claims and contacting potential witnesses and expert witnesses. Due to the nature of the wrongful death damages, it is common to have expert witnesses, which cost time and money. Accordingly, there is a lot of initial work done prior to these folks getting involved.
