Losing a loved one, in any way, is always tragic. Nothing can bring that person back or make you whole again, but a civil lawsuit against the party at fault for the death can bring some level of justice and closure. Regardless of whether there is also a criminal action against the responsible individual, it is essential to contact a personal injury attorney to preserve your rights in the civil justice system. I work closely with crime victims and the families of wrongful death victims to ensure those who caused the death of their loved one is held responsible. There might be more than one defendant, and it can include a person, business or governmental entity, such as a public school or the Department of Human Services.
Wrongful death refers to a lawsuit alleging the victim was killed as a result of another’s negligence. A defendant can be held liable for the wrongful death of another even if there was no direct intent to kill them. Usually, to succeed in such an action, the plaintiff must prove the defendant(s) was/were negligent or strictly liable for the victim’s death by a preponderance of the evidence, or more likely negligent or strictly liable than not.
The death of a family member causes tremendous pain and turmoil, along with unimaginable loss within the family. Typically, the suddenness of the death leaves the family feeling confused, angry and powerless, with many questions unanswered. Of course, hiring a lawyer in the immediate aftermath might seem unimportant in the face of such a severe loss, but it is a time-sensitive, critical decision that might dramatically impact the lives of the surviving immediate family members. Unfortunately, the person and/or company at fault for causing someone’s death are not held accountable due to the failure of surviving family members to institute prompt legal action. All too often, critical evidence is destroyed in the days and weeks following the fatal incident. State laws governing wrongful death might the possibility of recovery or bar legal action when certain legal criteria or time limitations are not satisfied. Therefore, the surviving family members should consult with a personal injury right away to ensure they preserve their rights and meet all crucial timelines.
Skilled personal injury attorneys who pursue wrongful death claims appreciate both the complex legal issues and the powerful emotional trauma involved in a death claim. That attorney will vigilantly represent the rights of the victim while assisting the surviving family members in a responsible yet compassionate manner. In my current private civil practice and formerly as a Deputy District Attorney, I have personally helped many victims and families through such a loss.
Common Wrongful Death Cases:
- Auto collisions
- Drunk driving
- Medical malpractice
- Poor choices of a caretaker
- Dangerous or defective products or drugs
- Various other negligent or criminal acts
Catastrophic Injury & Wrongful Death FAQ Questions
The catastrophic injury or death of a loved one is devastating to the surviving victim and the family. Grievous injuries and wrongful death are not necessarily caused by an intentional act, but are often the result of negligence or recklessness by a person or entity. Wrongful death cases differ from a “standard” personal injury matter because they are subject to the rules and limitations of the wrongful death statute. Cases involving a catastrophic injury in which the victim is incapacitated or a wrongful death also include elements of probate law.
The 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.
Only 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
Pecuniary 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.
In 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.
Under 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.
A 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.
Comparative 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.
The 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.