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In the Case of a Wrongful Death, You Need to Know If You Can Qualify to Sue

August 9, 2018 by The Parrish Law Firm

Many circumstances can lead to death. A death is a “wrongful” one, however, only when it results from the negligence or intentional harm of another.

A wrongful death lawsuit is a case filed for the benefit of the victim’s family members. The law presumes that family members have suffered losses as the result of the death and lays out who can sue for wrongful death.

Some examples of negligence causing wrongful death include:

Under Virginia law §8.01-50, the decedent’s personal representative must prove negligence. This burden of proof is the same in a wrongful death case as it would have been in a personal injury case, had the victim lived to be a plaintiff himself/herself.

What a Wrongful Death Lawsuit Requires

In order to file a wrongful death case, the personal representative establishes that a human being, in fact, lost his or her life with a certified death certificate. In the case of medical malpractice, the court will require an expert witness certification at the time of the lawsuit filing.

The elements of negligence are:

  • Establishing the wrongdoer owed a duty to the decedent as a matter of law
  • Evidence that the wrongdoer breached that duty
  • Evidence that the breach of duty was the direct cause of death
  • Proof of loss to surviving family members

Even with a strong case, a personal representative cannot file a wrongful death lawsuit in a trial court without first securing a proper appointment from the court. Virginia courts operate under statutes to which the court must strictly adhere.

Obtaining Personal Representative Status

The law is quite complicated in relation to whom may qualify as a personal representative for pursuit of a wrongful death case. The personal representative acts in place of the deceased victim and may or may not be entitled to recover compensation in this kind of case. Only beneficiaries of the victim may be awarded damages in a wrongful death case. (Yes, a person may be a personal representative and a beneficiary.)  Said beneficiaries are divided into classes (based in part on how closely people are related to the victim or “decedent”) in the Virginia code. In order of priority, Virginia law §8.01-53 lays out who can recover damages in a wrongful death case:

  • Surviving spouse, children, grandchildren
  • Surviving parents and siblings
  • Relative who shares deceased person’s household and is dependent of deceased
  • Any surviving family member entitled to inherit a deceased’s estate under Virginia intestacy law (i.e., when someone dies without a will)

This is a specific order and not a list of alternatives. An absence of an entire class is a prerequisite to moving to the next class. Other information to know:

  • Only the natural mother may file on behalf of a fetus.
  • If a court has determined that a parent abandoned a deceased child, the court will likely not allow that parent to recover damages in a wrongful death claim filed on behalf of the deceased child.

A Plaintiff Must Have Legal Standing

“Standing” refers to someone’s legal qualification to file a lawsuit. A plaintiff must have the required standing in Virginia at the time of the filing of the lawsuit. If not, the court can dismiss the case. A dismissal could prevent re-filing of the case if the two-year statute of limitations has passed.

While the decedent may have resided in another state and have an estate pending in that state, only a Virginia court can appoint a personal representative for a wrongful death case filed in Virginia.

Another consideration is whether the personal representative has standing to pursue survival claims on behalf of the decedent. A survival claim is separate from a wrongful death claim.

The wrongful death claim is to compensate beneficiaries. A survival claim is to compensate the decedent’s estate for the decedent’s ‘pain and suffering’ and inconvenience and lost wages.

Compensation for Wrongful Death Beneficiaries

If the wrongful death lawsuit is successful, the court will hear evidence and make an order as to how the personal representative should distribute compensation to those who have suffered loss. The types of compensation family members can receive for wrongful death are:

  • Sorrow and mental anguish
  • Loss of the deceased’s care, comfort, guidance, companionship, and advice
  • Value of lost wages and benefits
  • Medical expenses
  • Funeral and burial expenses

Most wrongful death damages compensate surviving family members for their losses. In some cases, the court may order that the wrongdoer pay a separate category of damages called “punitive” or “exemplary” damages.

The goal of punitive damages is to punish the wrongdoer for conduct that went beyond basic negligence in showing a conscious disregard for the safety of others. Punitive damages make a wrongdoer pay a debt to society, with the beneficiaries receiving the proceeds.

Let a Wrongful Death Attorney Answer Your Specific Questions

For guidance about how to handle a loved one’s death, contact the Parrish Law Firm, PLLC. You can receive a no-cost consultation by calling 571 -229-1800.

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