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Wrongful Death Attorney

A wrongful death claim is one specific type of medical malpractice action where the patient died as a result of medical negligence. Such a claim must still be able to prove the basic elements that there was medical or hospital negligence, and that the negligence caused the death of the patient. However, the nature of the damages that can be recovered in medical malpractice cases that result in death is different than other types of medical malpractice claims.

The plaintiffs in any wrongful death case are the heirs of the decedent. In the case of the death of a child, the heirs are the parents. If the deceased patient was married, then the heirs are the spouse and any children. If the deceased patient was not married, then the heirs would be the children, if any, followed by the parents, if any survive, followed by siblings. In some cases, the determination of the proper heirs may be quite complicated, but it is essential the the proper heirs all be involved in any wrongful death claim, since the law requires all heirs to be named as either plaintiffs or defendants in any wrongful death claim.

While there is often negligence in medical or nursing care in connection with almost any patient who is hospitalized for any serious or significant medical condition, such negligence is not sufficient to prove a medical malpractice claim unless there is a causal connection between the negligence and the cause of death. Unfortunately, in many cases, especially in the elderly or in patients with complex underlying medical conditions, an autopsy is not conducted and the cause of death is left to the opinion of the treating physician. However, in some cases even an autopsy may not provide sufficient information to connect evidence of negligence with the cause of death.

The most significant difference between a wrongful death claim and other types of medical malpractice cases involves the nature and type of damages that can be recovered by the heirs. Under California law, any pain and suffering that the decedent suffered before death is not recoverable by the heirs. The only exception to this rule is in an elder abuse case, where the law specifically allows the heirs to recover for the pain and suffering of the decedent before death.

California law, since 1975, has limited recovery of non-economic damages in all medical malpractice cases, including wrongful death claims, to $250,000. Only when there are economic losses suffered by the heirs as a result of a death can the heirs recover more than $250,000. Also, the limitation on such non-economic damages is applied to all heirs in a wrongful death claim collectively, so that all heirs must share in the recovery.

There is no artificial limit under California law for economic losses, which can be significant, depending on the age and prior income of the descendant. Also, California law recognizes that there is economic value to services provided by the descendant to the family, including the spouse and children, even if the descendant was not working at the time of death. The economic value of these “home services” is often overlooked by attorneys who are not familiar with the details of the law that applies to medical malpractice cases. In non-medical cases, where there is no limit on the recovery of non-economic damages, the economic value of home services may not be as important. However, in medical malpractice or negligence claims, where there is an artificial limit on the recovery of non-economic damages, it is important that the recovery maximize the economic losses where possible.

Click here to watch a brief introductory video regarding wrongful deaths lawsuits featuring Dr. Bruce G. Fagel.

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This resource page is provided by Dr. Bruce Fagel for your information. Nothing on this site should be taken as legal advice for any individual case or situation.