Catastrophic Injury and Wrongful Death

– Catastrophic Injury and Wrongful Death Questions –

AThe statute of limitations is two years, like most other personal injury cases. However, if the incident resulted in death, the statute is extended to three years, in most cases. There can also be certain requirements under the Oregon Tort Claims Act, if the case is against a public entity.

AOnly the personal representative of the estate of the deceased person can file a wrongful death lawsuit. Oregon statute ORS 113.085 provides a preference in who can be appointed by the court as the personal representative, which is in the following order:

• The executor named in the will, if any
• The surviving spouse of the decedent or the nominee of the surviving spouse
• The nearest kin of the decedent or the nominee of the nearest kind
• The Director of Human Services or the Director of the Oregon Health Authority if the decedent received public assistance
• The Department of Veterans’ Affairs in some instances or any other person the court chooses

APecuniary loss falls under economic damages and is the loss of financial support the decedent would have provided to their surviving family members, had the decedent lived. Pecuniary loss also applies to care and services a decedent would have provided, such as of a parent to a child, including moral training and overseeing the child’s education. Additional services include housekeeping, cooking, maintenance, pet care, yard work and basic duties or companionship of a spouse or partner. A jury would determine the value of these services.

AIn a wrongful death case, if the decedent lived and, presumably, continued working, the survivors of the Estate may be awarded the future pay would have earned. To determine the amount lost, one must use the decedent’s most recent income and calculate the amount if it were invested at a reasonable interest rate and over the period of the decedent’s likely life expectancy.

AUnder Oregon law, the non-economic damages (loss of care, comfort and companionship and society and loss of consortium) awarded to the beneficiaries in a wrongful death case are currently limited to $500,000. There is no limit to economic damages or punitive damages that may be recovered.

AA person is qualified to act as the personal representative of the decedent’s estate, unless they are:

• An incompetent;
• A minor;
• Suspended for misconduct or disbarred from practicing law during the time of suspension or disbarment;
• Resigned from the Oregon State Bar when professional misconduct charges are under investigation or disciplinary proceedings are pending against the person until that person is reinstated;
• A judge of the circuit court, Oregon Tax Court, Oregon Court of Appeals or Oregon Supreme Court; or

A licensed funeral service practitioner, unless the decedent is:

• A deceased relative of the licensed funeral service practitioner; or
• A deceased licensed funeral service practitioner who was a partner, employee or employer in the practice of the licensed funeral service practitioner who is petitioning for appointment as personal representative.

AComparative negligence, also called “comparative fault,” is when both or multiple parties in a case are each found to be partially at fault. The amount of fault among all parties must equal 100%. If the decedent in a wrongful death matter is found to be partially at fault, it may reduce the damages awarded to the Estate by the percentage the decedent was deemed at fault.

AThe Employee Retirement Income Security Act (“ERISA”) covers most insurance plans for health, disability and pensions through private employers. ERISA health plans are becoming more aggressive in their attempts to recover medical expenses from plan members for whom they have provided medical benefits. ERISA’s claims for reimbursement, particularly in wrongful death cases, can take up a large portion of the case’s settlement funds.