Anger, hurt, and a keen sense of bitterness often follow when a loved one dies due to the negligence, real or perceived, of another person or group. While launching a wrongful death claim may be the correct action to take in some cases, we recommend taking a look at what our legal experts have to say on the topic before proceeding.

Kimberly Beck

Kimberly Beck

Kimberly Beck, Beck Law Center.

5 Tips on Filing a Wrongful Death Claim

I recommend taking several steps when preparing and deciding whether to bring a wrongful death claim.

1. Start journaling as soon as you see any red flags that something may be amiss. If you are unable to journal because of your emotional state or because you are taking care of other issues, put someone else in charge of journaling.

For example, if your loved one has gone into surgery, and you start to get reports that are inconsistent or otherwise lead you to believe there may have been a mistake, just write down or dictate to your phone exactly what you were told and when. Also, note how you feel and the reactions of your family.

Your notes serve two important purposes if you decide to bring a case. First, the notes will help you provide accurate facts to your lawyer. Second, although they will likely not be admissible, you will probably be able to refer back to them when testifying. The details will help paint a picture for the jury.

If you do not need the journal for litigation because nothing went wrong and your loved one is fine, your notes may still help you by giving you an idea as to which follow-up questions to ask to help your loved one obtain better medical care.

2. If your loved one dies, and you think there may be a wrongful death claim, do not fall victim to any of the “act fast” or “buy now” claims. You will need to decide whether to request an autopsy relatively quickly, but you do not need to select your lawyer immediately or accept a financial payment within hours of the death. As soon as you start to hear high-pressure sales tactics, just say “No, thank you.”

3. A few weeks after the death, if you are still not sure whether you want to pursue a wrongful death claim, go ahead and find a lawyer. Remember, even once you have called a lawyer, you are not required to bring a suit. Please call a lawyer early because:

(1)You do not know which statute of limitations applies to your case and you may have as little as one year to file suit.

(2)You might not be the right plaintiff. Different states have different requirements as to who can represent the estate of someone who has died. If the person who died had a spouse, the spouse is probably the person who needs to represent the estate, even if they did not get along, even if they hated each other, even if they had not lived together for several years. Your lawyer should be able to help you if the spouse really should not represent the estate, but that is not something that can be resolved overnight.

(3)Some states will allow you to bring a wrongful death case only if you have been appointed by the probate court. Again, you cannot get appointed by a probate judge overnight.

4. Your lawyer will be able to tell you which documents you need to gather.
You will almost certainly need the death certificate, any medical records regarding treatment after the injury occurred, and the will if your loved one left a will.

Depending on the cause of death, you may also need your loved one’s medical records dating back years before the death. For example, if the cause of death was a car accident, you would not need older records. However, if you bring a wrongful death claim against a herbicide company, claiming that your loved one died of lymphoma caused by years of exposure, you can be sure that the company will need to see every medical record, pharmacy record, employment record, and every military service record you can find.

5. Throughout the case, you need to be prepared to do whatever is required to take the next step. Wrongful death cases are hard. You may be expected to answer deposition questions about the events leading up to the death for a day or more. You may have to deal with the frustration of asking your loved one’s doctors to send medical records that they already sent because they failed to swear in an affidavit that the records provided are the entire set. It is painful and frustrating.

The people who seem to be able to jump through the hoops most easily are the ones who have an emotional support system. That could be anything from a good network of family and friends, a religious group, and even a hobby that can give some respite when the case gets particularly daunting.

Ensure Your Client Is Properly Authorized, Gather Probative Evidence

First and foremost, be prepared to deal with the fact that a wrongful death claim is one of the most emotional cases a lawyer can take. The family is suffering and coping with grief. The name of the case alone suggests the devastating loss the family is going through. Ensure you have the right client – it must be the Executor/Executrix or the person with POA over the deceased’s estate.

Make sure you have probative evidence of the proximate cause. And finally, consider the life the deceased was living – not just financials like future earning potential, but what they and the family will miss out on; how many Christmases, birthdays, births, deaths, graduations will the deceased not be there for? When you take the time to consider a wrongful death case from all these perspectives, you are well prepared to represent your client with vigor.

Gregory Herrman

Gregory Herrman

Gregory Herrman, Managing Partner, Herrman and Herrman PLLC.
Randy VanderVaate

Randy VanderVaate

Randy VanderVaate is the CEO and founder of Funeral Funds of America, a nationwide life insurance provider.

Prepare Basic Information, Including Witness Statements

To file a wrongful death claim, you will need to prove that the person who died did so from negligence or the recklessness of another person or entity. This can be difficult to prove, so it is essential to speak with an experienced personal injury lawyer if you are considering filing a wrongful death claim.

You will also need to prove that the defendant was negligent or wrongfully caused the death of your loved one. This is best proven by providing evidence such as witness statements, medical records, and police reports.

When considering a wrongful death claim, you need to prepare the following information:

  • The name of the deceased
  • The date of death
  • The contact information for the surviving spouse or next-of-kin
  • The type of accident or incident that caused the death
  • Names and contact information for any witnesses

If possible, it is also helpful to have copies of the police report, autopsy report, and death certificate.

Start by Consulting an Attorney

The first thing you should do when considering a wrongful death claim is to consult an attorney. They can help advise you as to the strength of your claim and discuss the details with you. You should never pursue a wrongful death claim without great representation because it can negatively impact the outcome.

Jordan W. Peagler

Jordan W. Peagler

Jordan W. Peagler, Esq. is a Personal Injury Lawyer at MKP Law Group, LLP.

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