Posted on: 5 April 2019
Do you feel like your loved one lost their life due to someone else's action or lack of action? Maybe a doctor failed to recommend a life-saving procedure that could have helped your loved one. Or maybe they made a mistake during surgery, and that led to your loved one's death. You may be able to file a wrongful death lawsuit and recoup some damages to account for your loved one's funeral costs and your own pain and suffering due to their death. Making such a case can be challenging, however. It will all hinge on proving that someone else was negligent towards your loved one.
What is negligence?
You may have heard the term negligence used colloquially. A parent who does not take great care of their kids or an owner who does not take care of their pets is often said to be negligent. In the legal world, however, the term negligence has a more specific definition that can be broken down into three components:
1. Person or Company A had a "duty of care" towards you. In other words, they were obligated to provide you with a certain level of service.
2. The actions or lack of actions of Person or Company A did not satisfy that duty of care.
3. Person B suffered an injury (or in this case, death).
4. Person B would not have been injured if Person or Company A had satisfied their duty of care. In other words, failure to satisfy the duty of care is the cause of the injury or death.
Who has a duty of care in a wrongful death case?
Not every death is a wrongful death case. If your loved one was struck by a vehicle, the driver may be charged with manslaughter, but it would be tough to argue that they had a duty of care towards your loved one. Thus, they probably won't be determined to be negligent. On the other hand, a doctor, nurse, or other caregiver does have a duty of care towards your loved one. If they made a mistake in caring for your loved one, they could be found to have breached that duty of care -- which is the first step towards finding that they're negligent.
Is someone who violated the duty of care always negligent?
In short, the answer is "no." The other two qualifications of negligence must also be satisfied. If the person violated the duty of care but that is not determined to be the cause of death, the person won't be found to be negligent. This is best illustrated with an example. Imagine a doctor fails to sanitize an instrument during surgery, and your loved one dies of an infection. An autopsy, however, reveals that the infection was present before the surgery. In this case, yes, the doctor violated the duty of care -- but negligence has not been satisfied since their mistake was not actually the cause of your loved one's death.
Who should you sue for wrongful death?
This can be a difficult determination to make, but it hinges on determining who, exactly, was negligent in your loved one's case. The lawyer will usually examine evidence from multiple parties -- such as the doctor, the hospital, and the pharmacist -- to see who they can form the strongest case against. It may not be the person you assume, since you may have overlooked some small but meaningful mistakes in your cursory evaluation of the situation.
Wrongful death cases depend heavily on proving negligence. As you can see, doing so is complicated, which is why you always want to hire an attorney who offers wrongful death law services to represent you.Share