The wrongful death acts allow for surviving beneficiaries to file suit (or a statutory claim) against the person or persons causing the death. Alleged medical malpractice claims resulting in death will generally result in a wrongful death claim.
The personal representative of the estate of the deceased person brings the cause of action on behalf of the estate and all beneficiaries. Only the personal representative has the right to direct the cause of action as the plaintiff. All other aspects of medical malpractice defense apply.
The plaintiff is still required to prove by a preponderance of the evidence that the health care provider owed a duty to the decedent, breached the duty, did not follow the standard of care, and proximately caused damage to the decedent prior to death.
No. Most states have a wrongful death act that creates a cause of action in favor of the decedent’s personal representative. This person can sue and be sued in the name of the deceased person just as if the person were still alive.
A few states have “survival acts,” which operate under the theory of preserving the claim vested in the decedent at the moment of death. Unfortunately, these statutes only allow for claims by the decedent for pain and suffering. If the death was instantaneous, there is a presumption against the cause of action.
Additionally, many states limit the beneficiaries of wrongful death claims. Michigan offers a very liberal approach to wrongful death and allows the spouse, children, parents, and siblings to all recover for a wrongful death. Florida is more restrictive; for example, if a claim is filed on behalf of a deceased spouse, without minor children, only the surviving spouse is entitled to recover damages. If there are minor children, they are also allowed to recover damages.
No. English “common law” generally denied all claims of a person upon his/her death and denied any third-party claims. If someone argued that a person’s death was caused by another, the courts generally responded with the simple fact that the person was now dead and, therefore, damages were not necessary.
This concept continued until 1846 when England passed the Fatal Accidents Act. Today, every American state has a statutory remedy for wrongful death modeled after the English version of the Fatal Accidents Act.
Defending wrongful death claims can be very tricky and emotionally charged. Often the heirs take the stand and try to move the jury with the story of their loss.
But a skillful healthcare defense attorney can effectively cross-examine these witnesses without leaving a negative taste in the juror’s mouths.
Chapman Law Group is experienced in all forms of medical malpractice defense, including wrongful death claims. If you are a physician, uninsured doctor, pain management specialist, dentist, or other licensed healthcare professional, and you are facing a potential lawsuit involving wrongful death, medical malpractice, or anything related to health care, we are the attorneys you need.
For 35 years, the healthcare lawyers at Chapman Law Group has successfully defended hundreds of complicated medical malpractice claims all across the U.S. — from Chicago to Los Angeles, and from Miami to Detroit — with exceptional results. We understand the complexities of health care, and we work hard to defend your good name and your right to continue to practice your chosen profession.
Our offices are based in Michigan (where we serve the Detroit, Ann Arbor, Grand Rapids, Dearborn and Troy areas), and Florida (for Miami, Tampa, Jacksonville, West Palm Beach, Orlando and other regions).
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