The loss of a loved one is difficult. In addition to the emotional impact, there’s the stress of arranging a burial or cremation. Medical bills and other financial matters add to the strain. When you suspect the death of your loved one was preventable, the grief is unimaginable. When someone’s negligence or actions caused that death, a wrongful death claim may help you gain a financial recovery of the damages.
Wrongful death claims aren’t available for everyone. There are three main components to a claim that you must be able to meet. These are the three criteria you need to meet.
The Death Must Have Been the Result of Negligence or a Criminal Act
Your loved one’s death must have been caused by someone’s negligence or criminal act. For example, a surgeon takes a narcotic before performing surgery and makes a mistake during the procedure. The medical team cannot save the patient. Blood tests prove the presence of the narcotic in the surgeon’s blood. It was a wrongful death as the surgeon was impaired.
A company knows there’s a defect in a product, but they sell it anyway. The defect leads to someone’s death. The company should have pulled the item from the market, but the decision was made to sell it anyway. That’s also a wrongful death.
A woman gets into the car after having six glasses of wine. She runs a red light and kills a pedestrian. She can be sued for wrongful death. Her actions caused the crash that led to the death.
What constitutes a death that doesn’t qualify as a wrongful death? Imagine your loved one is prescribed a medication that the doctor, pharmacist, and bottle labeling all clearly warn cannot be used with alcoholic beverages. Despite the warnings, your loved one takes the medication after having several drinks. As your loved one had been warned of the dangerous interaction that could occur, it’s going to be hard to claim negligence on the doctor or pharmacy’s part.
Only Specific People Can File the Complaint
Within the first year of a loved one’s death, the surviving spouse may file a wrongful death complaint. In the second year, the children and/or spouse can. If there are no children or spouse, the parents of the victim can file in either the first or second year. The other person who can file is the person managing the decedent’s estate.
The claim can include the money the decedent would have been expected to earn, medical bills, funeral/burial/cremation expenses, and emotional loss. The losses an estate manager can file are limited to losses the estate suffers. Colorado is one of a handful of states that also allows the wrongful death award to include punitive damages designed to punish the person for breaking a law.
The Complaint Must Fall Within the Statute of Limitations
The complaint must be made within two years of the date of death. While there are exceptions to the rule, you should pay very close attention to the two-year deadline. Generally, the exception comes into play if you learn that negligence caused the injury long after the date of death.
If you think an exception will apply to you, you have no options if you learn too late that you didn’t qualify for the exception. It’s best to talk to a wrongful death attorney as early as possible to ensure you don’t miss the deadline. If you could postpone filing, an attorney will tell you.
What Happens Next?
If you believe you qualify, talk to a wrongful death attorney. The complaint is filed, and the defendant has time to respond to your request. At this point, the defendant may offer a settlement or deny your request and go to trial.
The first step of a trial is the discovery phase. During this point, both sides learn all they can about the case and talk to witnesses. The second part is the trial. The trial may or may not involve a jury. Witnesses and experts are called to testify. The evidence is presented and the judge or jury come to a determination as to whether or not the defendant is guilty and what, if any, the financial award will be. It can take years to gather evidence, interview witnesses, and reach the trial. It’s important to realize that it’s not always a speedy process. A wrongful death case does require patience.
Jordan, Herington & Rowley Have questions about a wrongful death? Our attorneys offer free consultations. Call (303) INJURED at your convenience. We offer 24/7 consultations, so it’s never too early or late to give us a call.