The most common types of wrongful death claims involve medical malpractice, often resulting from one of the following: a doctor's improper diagnosis, trucking accidents, medication side effects, nursing home negligence, or just about any type of injury that became severe enough to cause a person to lose his or her life.
From a personal injury lawyer's point of view, there is no greater tragedy than the unnecessary loss of a life due to the negligence of another person. These cases are highly emotional for the surviving family members, the defendant who caused the death, as well as the lawyers involved. Many times, the true facts surrounding a death are concealed, or worse, conveniently changed within official records to protect or immunize a defendant. Making matters even more difficult is the fact that wrongful death victims will often die from their injuries before they can explain how their accidents happened. As a result, lawyers and their investigators are often required to piece together the facts to determine exactly how an accident happened.
If an accident victim died without a will, issues as simple as deciding which family member will be appointed to serve as the "Administrator ad Prosequendum," or the legal representative of the estate, can be very difficult, especially if the surviving family members include children from a prior marriage, separated spouses, or children born to unmarried parents. The administrator of the estate ultimately makes the important decisions such as which lawyer to hire, and later, the final decision authorizing a settlement.
Certain occupations, by the nature of the work itself, are extremely dangerous. Construction site accidents, such as burns or a fall from a scaffold are challenging since the applicable liability laws of each state will determine different outcomes. Workers' compensation laws in one state may prevent a worker from suing his or her employer for damages in that state; however, had the accident happened in a different state, the worker may have been able to sue the employer or co-workers for damages.
The amount to which family members are entitled to claim due to the loss of a loved one also differs from state to state. In New Jersey, two distinct claims can be brought as a result of an accidental death. These claims are known as the "wrongful death" claim and the "survival" claim.
The wrongful death claim is for the future financial losses suffered by the family of the decedent, while the survival claim is for his or her pre-death pain and any financial losses suffered by the decedent.
Wrongful death damages in New Jersey consist of the future financial losses to a surviving spouse and any financially dependent children of the deceased. In New Jersey, surviving family members are not allowed to make a claim for their emotional losses. However, they can make a claim for quantifiable future dollar losses. Often they must prove these losses by hiring an economist who will serve as an expert witness to arrive at a dollar amount valuing the loss.
As an expert witness, the economist will put an hourly value on the future lost services of the decedent for any companionship services to a spouse, homemaking services, advice and counsel, plus the loss of future earnings that would have been used to support a surviving spouse or dependent children.
Again, there is no right to compensation for the emotional pain experienced by a decedent's family unless they happen to have been eyewitnesses to the accident.
For an understanding about just how complicated the valuation of a case can be for a jury, one must examine the actual jury instruction given to a jury by the trial judge before the jury begins their final deliberations. Here is what a judge instructs a jury not to consider in any wrongful death case:
8.43 Wrongful Death (Approved 3/2010)
What Is Not Recoverable A. In this category of damages, you are not to consider any physical injuries or suffering that the decedent may have sustained, such as pain and suffering or disability.
B. You are also not to consider any emotional distress, anguish, or grief the survivors may have suffered as a result of the decedent's death, or any loss of emotional satisfaction the survivors may have derived from the society and companionship of the decedent. These matters, although very real and distressing, cannot be considered in determining the extent of the financial loss suffered by the survivors.
Another part to a death claim is known as the survival action. This part of a claim is brought by the administrator of the estate for the pain and suffering experienced by the decedent prior to his or her death. This claim is not only for the decedent's pre-death pain and suffering, but also for the economic losses suffered by the deceased up until the time of his or her death.
Before a jury values a survival action, they will hear the judge specifically instruct them that they must apply the following law:
8.42 SURVIVAL ACTION (Approved 2/96)
In a survival action, the administrator as plaintiff is seeking damages for the decedent's hospital and medical expenses, loss of earnings as well as any disability and impairment, loss of enjoyment, and pain and suffering which the decedent sustained between this accident and his/her death. Under the law, he/she is entitled to recover the damages which the decedent sustained during this period of time.
The current law in New Jersey is particularly unfair and cruel because if a person died instantly from an accident, the formula for evaluating damages allows only for the actual future economic losses suffered by the dependent surviving spouse and children. So in effect, under the current New Jersey law, there could be little or no provable economic loss if the decedent was a young child, a disabled adult, a retired senior citizen, a young unmarried adult, or a homemaker. Making matters worse, under the current New Jersey law, the economic loss is further compromised if the decedent had no dependents such as a spouse or minor children.
Under certain circumstances, such as a death caused by a drunk or intoxicated driver, a jury may be asked to consider and award punitive damages. These damages are specifically designed to punish and set an example to others of the consequence of the reckless disregard of the rights of another. For these reasons, wrongful death and survival cases can be extremely complicated and should not be handled by anyone other than an experienced New Jersey personal injury lawyer.
Despite the obstacles of the current New Jersey wrongful death laws, a skilled lawyer can study a person's life and with the help of an appropriate economist determine the true financial loss of not only future earnings, but the loss to the family of the society, companionship, and services of a loved one.
Although no amount of money can ever fully compensate a family for the loss of a parent or child, the process does provide the family with a sense of justice, which eventually helps bring closure to the situation.
A lawyer can feel satisfied if he or she helped a grieving family find the answers they so desire, held the wrongdoer financially accountable, and helped the family reach the closure they need so that they can honor the memory of their loved one, yet continue with their own lives.