When a wrongful death occurs as a result of negligence or other wrongful conduct of an individual or company, the family of the deceased is entitled to full and adequate compensation for the loss of their loved one. Misconduct or negligent action that contributes to a person’s death is classified in legal terms as wrongful death.
Common types of cases include:
- fatal medical mistakes
- construction site accidents
- vehicular homicide
- workplace accidents
- fatal product defects
- fatal prescription errors
Your first step should be to consult with an experienced wrongful death attorney. Generally, lawsuits allowed under survival statutes allow a victim’s survivor to bring a cause of action after the victim dies. Laws in Illinois govern the time frame in which a wrongful death lawsuit may be filed.
There are some key distinctions between a wrongful death claim and a criminal case, even when both cases are based on the events surrounding the same death.
- A wrongful death claim is a civil lawsuit. It is brought to court by the personal representative of the deceased person’s estate directly, and any liability is expressed solely in terms of money damages. By contrast, a criminal case is brought by the state or federal government, and the liable person’s guilt is punished by jail or prison time, probation, or other penalties.
- A wrongful death case may be brought to court even if the government is also pursuing a criminal case.
Who Can File a Wrongful Death Suit?
In Illinois, a wrongful death claim must be filed by the personal representative of the deceased person’s estate. Generally, the personal representative is responsible for pursuing the wrongful death claim. Examples of personal representatives include:
- a spouse of the deceased
- a parent of a minor child who is deceased, or
- an adult child of the deceased
However, if a person dies without appointing a personal representative in his or her estate plan, the court may appoint a personal representative.
What Kind of Damages Are Possible?
Damages in a wrongful death claim are primarily awarded based on financial loss. These may include medical and funeral expenses. The surviving spouse is also entitled to damages for the loss of the deceased spouse’s companionship.
Pecuniary and punitive damages
Pecuniary damages are those that one may receive in the event that the deceased was providing financial support or service. Punitive damages may be awarded in cases that involved malicious acts or wrongdoing to punish those at fault and as an incentive to encourage others to act more reasonably in similar circumstances in the future.
A victim’s earnings at the time of his or her death may be used to determine future lost earnings based on life expectancy tables, as well as experts who may calculate what is known as present cash value as well as the investment value of money. The deceased person’s will also must be examined.
When Do I Have to File A Claim?
In Illinois, a wrongful death lawsuit must be filed within the time limit set by the “statute of limitations” for the underlying type of case, or within one year of the date of the deceased person’s death, “whichever date is the later.” For personal injury cases, which must be filed within 2 years of the date of the accident, the personal representative has at least one year, and as much as two years, to get the initial lawsuit filed in the Illinois court system. If the case is not filed within the applicable time limit, the court may refuse to hear it at all.
If you’ve got questions about how the Illinois filing deadline applies to your specific wrongful death case, it may be time speak to an experienced wrongful death attorney.
Can a Wrongful Death Suit Be Brought Against a Nursing Home?
Whether the wrongful death claim is against an employer or a nursing home, the same requirements apply. Your lawyer must prove that the defendant’s conduct has been responsible for the death of your loved one. Second, your lawyer will need to show that a nursing home facility was negligent and liable for the death of your loved one. Third, there must be surviving family members of the deceased person that are the spouse, children, beneficiaries or dependents. Lastly, there must be monetary damages that have resulted from the decedent’s death.
In proving a wrongful death claim, there are many forms of underlying neglect that can be used to support the claim. Save any evidence that could be used in proving the underlying basis of a wrongful death claim, such as
- photographs of injuries,
- medical records,
- contaminated clothing,
- smart phone video recordings,
- saved testimony from employees and
- other evidence that you feel may be relevant.
Below are several common types of neglect that can be used to prove a wrongful death claim:
- development of bed sores,
- use of restraints,
- physical abuse,
- sexual abuse,
- improper medical care,
- physical therapy malpractice, and
Meeting with an experienced nursing home lawyer, such as the Law Offices of R.F. Wittmeyer, Ltd., as early on in your case will ensure that you preserve this evidence and gather any other evidence that may be necessary for your case.