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What does California consider wrongful death?
A wrongful death case presents itself in California when someone dies as a result of someone else’s actions, particularly intentional misconduct or negligence. There are many instances that can cause this to happen. Here are a few common examples:
- Work accident due to improper gear from employer
- Death following the use of a faulty product
- Illness and death following a misdiagnosis
- Car crash resulting from someone else’s speeding and drunk driving
What is a survival action?
When deciding how to respond to a wrongful death incident, family members have two options to consider: wrongful death action and survival death action. Survival action becomes available to family members whose loved ones did not pass away immediately. An instance of this is when someone suffers injuries in a car crash and begins to recover but ultimately succumbs to their injuries.
Generally speaking, family members bringing a survival action are not able to recover compensation for pain and suffering. Elder abuse is the only current exception. However, the family may recover punitive damages as well as money to replace the economic impact of losing their loved ones.
How much time do we have to decide if we intend to bring a wrongful death action?
The general range is six months to two years, but exactly where you fall within this limit depends on the specifics of your case. Generally speaking, family members have two years to bring a wrongful death action.
The time limit for survival actions may range from six months to two years from either when the death occurred or when economic damages began to accrue. Of these two periods, lawmakers allow family members to choose the latter.
It is a wise person who takes some time to consider their options. However, it is also important not to spend too much time deliberating. The sooner you bring an action, the fresher the evidence. The further you get from when the incident occurred, the more likely it is for witnesses to forget key details or for documents to get misplaced.
Who can bring a wrongful death action?
Not all survivors can bring a wrongful death case. California accepts actions from a spouse or children. If the person had no children but was married, the parents also get the right to bring a case. In instances where the person has no spouse, no children and no surviving parents, brothers and sisters gain the right to take action. If a minor is the victim of a wrongful death incident, the parents can take action.
Who can bring a wrongful death action can become extremely complicated, especially if multiple family members want to act. Note that survivors cannot file multiple cases, but each person might be able to retain separate attorneys.
There might also be instances where some family members decide they do not want to get involved in the case. They have the right to opt out but must typically sign their rights away in these instances.
What if my family member played a role in his or her death?
California does not only award absolute fault to one party or the other. Instead, it also considers the role each party may have played in the death. It then awards compensation based on the percentage of fault.
For instance, a doctor might prescribe the wrong medication, but the patient also took more than the recommended dosage. In the eyes of the court, the person might have lived if the doctor prescribed the right medication but also if they had taken the correct dosage.
Say, in this case, the court decides that the deceased patient should take 40% of the blame for their actions. The court then awards the family $2 million. The family would receive $1,200,000.
How much money will my family receive?
An attorney can look at the details of your case and make an educated guess. However, the final figure is up to the court after hearing both sides of the case. When it comes to economic damages, courts take a very realistic approach. They determine the financial contributions the individual would have made. This includes their income minus the amount of money they spent on their own expenses. Because of this, the deceased’s spending habits might play a big role in the final figure.
If the family is also entitled to pain and suffering or punitive damages, the amount awarded varies. The greater the negligence and the more heinous the circumstances surrounding the death, the higher this figure tends to be.
How do families divide compensation?
How money gets divided depends on how the case was resolved. If the responsible parties decide to settle, families get to decide how to split the money. Ideally, the interests of dependents come first as they are the most affected. Using trusts is one of the many ways families try to protect the younger members of the family.
If the case goes to trial, the court decides who gets what. There are two main factors the jury keeps in mind. The first is how financially dependent the person is. Consider, for instance, the difference between a stay-at-home wife and an adult child who works. The second is how close the deceased and the beneficiary were before the incident.
Do I need an attorney?
The answer to this question depends on your definition of need. Can you pursue a wrongful or survival action without an attorney? Yes, it is possible to do so. However, courts advise against this. People often end up leaving money on the table because they are unaware of the full extent of their rights or families begin to fight about who gets to participate in the case and how.
An attorney can help to resolve many of these California wrongful death issues. Contact Kreeger Law Firm about representation.