To prove someone is liable for the death of your loved one, your lawyer must first prove that the defendant had a duty of care toward the deceased individual. This means that the person at fault had a legal obligation to either take action or not take action in order to protect the person's life. For example, all drivers are legally obligated to act reasonable in protecting the lives of other individuals on the road. Likewise, doctors, hospitals, nursing homes and any other medical professionals and facilities have a duty of care toward patients. They are required to adhere to standards of practice designed to minimize risk of life.
Breach of Duty
Next, your lawyer must prove there was a breach of duty by the defendant -- that he or she was negligent and failed to meet the duty of care. A drunk driver who runs a red light and a doctor who does not perform standard tests (or ignores test results) are both considered to have breached their duty of care.
Breach of Duty Resulted in the Victim's Death
Once a breach of duty is established in a wrongful death case, your lawyer must show that the defendant's negligence and breach of duty resulted in the victim's death. As part of this proof, it must also be shown that death would not have occurred if the defendant had not been negligent. In a car accident caused by a person's drunk driving, showing that the victim would have gone on living if not for the defendant's breach of duty is fairly simple. However, demonstrating that a cancer patient's death would not have happened if the doctor had ordered a particular test or taken another action is much more difficult.
Lastly, your attorney must show that you and other survivors incurred damages, such as the loss of income and loss of love. Loss of income, or a person's contributions to a household, is relatively simple to prove. Demonstrating the value of loss of companionship and emotional distress is often more difficult.