QUESTION:
My father died from a leak in his colon, causing him to have heart failure. Two days before his death, his physical therapists came to his room and picked him up under his arms and transferred him to a chair, putting all his weight on the lower part of his body. I have been very ill even if it has been more than a year since my father’s death. What circumstances allow for a wrongful death suit?
ANSWER:
For a wrongful death cause of action, there must be a determination of “causation,” detriment or suffering caused by the death, and standing of the person claiming injury; one should also be aware of the statute of limitations for filing the action.
“Causation” is an essential element of a tort action. Defendants are not liable unless their conduct (i.e., act or omission constituting a breach of duty to plaintiff) was a “legal cause” of plaintiff’s injury [Saelzler v. Advanced Group 400 (2001)]. Under a wrongful death cause of action, plaintiff must prove the victim’s death was “caused by the wrongful act or neglect” of defendant—i.e., that defendant’s act or omission was a substantial factor in bringing about the victim’s death.
Only persons set forth in CCP § 377.60 have standing to a wrongful death action. Among them are “(t)he decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession” [CCP § 377.60(a)].
As a general rule, each wrongful death claimant is entitled to damages for all detriment he or she personally suffered and is likely to suffer in the future because of decedent’s death. Each eligible claimant can recover damages for the support and other financial benefits he or she would have received from decedent. Quite apart from direct pecuniary losses, each claimant is entitled to compensation for the services he or she could reasonably have expected to receive
from decedent. Wrongful death claimants—particularly parents, spouses, registered domestic partners and children—are entitled to damages for a proven loss of “love, comfort, companionship, society, affection, solace or moral support” [Corder v. Corder (2007); Allen v. Toledo (1980) ; Yates v. Pollock (1987); Canavin v. Pacific Southwest Airlines (1983)]. These are among the damages that may be recovered by the claimant.
Wrongful death actions are usually subject to one of two statutes of limitations: either the general two-year statute (CCP § 335.1); or, if suit is based on a health care provider’s professional negligence, the three-year statute (CCP § 340.5).
To know more about wrongful death claims and the proper steps to take, it is best to work with a lawyer who is an expert in personal injury for proper guidance and representation.