Austin Wrongful Death Attorney

A wrongful death claim arises when an individual is killed as a result of the conduct of another person. A wrongful death lawsuit is different from other types of personal injury claims because the actual victim (the “decedent”) is not the person bringing the lawsuit; rather, it is the family members of the decedent or the representative for the decedent’s estate who are initiating the lawsuit.

Common causes of a wrongful death include automobile accidents, aviation accidents, boating accidents, motorcycle accidents, accidents involving large trucks or big rigs, medical malpractice and defective products.

Who May Bring a Wrongful Death Claim

In California only certain persons are permitted to bring a wrongful death lawsuit on behalf of the decedent. Generally, the decedent’s surviving spouse, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse, who are entitled to the property of the decedent can file suit.

Claims Must be Initiated Within the Statute of Limitations

Under California’s statute of limitations, a plaintiff must bring a cause of action for wrongful death within two years of accrual. The date of accrual of a cause of action for wrongful death is the date of death. However, if the plaintiff is a minor under the age of eighteen, the statute of limitations is tolled (suspended) until the plaintiff attains the age of eighteen. If an heir or beneficiary is comparatively negligent for the decedent’s death, negligence of an heir will merely be a ground for reduction of his damages.

Recoverable Damages

Damages in a wrongful death claim are intended to compensate for the losses resulting from the death of a family member. Examples of recoverable damages include:

  • Loss of Future Earnings: the amount the decedent would have earned during his or her lifetime
  • Direct Expenses: including hospital and medical bills, and funeral cost
  • Loss of Benefits: what the decedent would be entitled to in pension/retirement benefits had he or she survived
  • Loss of Companionship: the loss of companionship and financial support provided by the decedent

Non-Recoverable Damages

Recovery is not permitted for loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, or damages for pain, suffering, or disfigurement.

Calculating Damages

Some damages, such as the amount of direct expenses related to medical bills and funeral costs, are easy to estimate. Other damages, such as the appropriate amount for loss of companionship, are more elusive and difficult to quantify. Calculating damages is a complex process that involves multiple factors. Some of the factors to consider include:

  • The nature of the plaintiff’s relationship to the decedent;
  • How dependent the plaintiff was on the decedent;
  • The anticipated lifespan of the decedent;
  • The anticipated earnings and employment benefits of the decedent; and
  • The amount of comparative fault (if any) on the part of the decedent.

Discounting Damages to Reflect Present Value

In many wrongful death cases, a significant component of the recovery is for the loss of financial support provided by the decedent. Typically, this amount is calculated by multiplying the decedent’s earnings at the time of death by the number of anticipated years before retirement or expected death using a life expectancy table.

For example, if a spouse at age 40 is earning $50,000 at the time of death, and he was not expected to retire or die for the next 25 years, his yearly earnings would be multiplied by the number of years he was expected to continue working ($50,000 x 25). In this example, the expected future loss would be $1,250,000.

When using a life expectancy table to calculate future losses, courts will often reduce the total future loss to a present dollar value. Since most wrongful death damage awards are paid in a lump sum, a beneficiary essentially receives the total amount of earnings and benefits the decedent would have made over the course of his/her life, reduced to a single amount which is discounted to present dollars. The purpose for using present value is to ensure that a successful plaintiff will receive a sum that if invested at a reasonable interest rate, should equal the value of the future loss amount and cover expenses that may eventually arise, provided it is conservatively invested.

Defenses to a Wrongful Death Claim

The available defenses to a wrongful death claim are the same as those defenses to a claim for personal injury. A claim may be barred for failure to bring a claim within the statute of limitations. Other available defenses include causation and comparative negligence.

In order to hold a defendant responsible for wrongful death, the plaintiff must prove that the defendant’s conduct was the cause of the victim’s death. To satisfy this requirement, the plaintiff must show a connection between the defendant’s conduct and the injury; the plaintiff must show that were it not for the defendant’s actions, the injury would not have occurred. The plaintiff does not have to show that the defendant was the only responsible party. For example, if the defendant’s vehicle crashes into the victim’s vehicle, pushing it into the path of an oncoming truck, the defendant will still be liable, as he or she set in motion the chain of events leading to the victim’s death.

It is important to show a continuous causal connection from the fault to the injury in a wrongful death claim. This continuous causal connection is analogous to a straight line starting from the fault to the injury. This causal connection must exist in order for the defendant to be held accountable. For example, the defendant’s vehicle crashes into the victim’s vehicle. The victim suffers from severe headaches, but he does not seek medical attention for several weeks and the hospital has difficulty in correctly diagnosing the source of the victim’s pain. The victim eventually dies in the hospital. While the hospital may be found negligent for the delay in diagnosis, the cause of death may be determined to be the victim’s failure to seek prompt medical attention, if earlier treatment would have prevented his death. In this example, the causal connection has been broken by the victim’s failure to receive medical attention.

Comparative negligence is conduct by the victim that contributed to the victim’s own injuries or death. If the decedent is found to be comparatively negligent, the amount of damages awarded will be reduced by the percentage of fault assigned to the decedent. For example, a victim is driving down a street at night without headlights. The defendant does not see the victim’s vehicle, and pulls into the path of the victim’s vehicle, killing the victim. The victim may be found comparatively negligent for driving without headlights.

Seek Experienced Legal Counsel

The death of a loved one is a traumatic event, and the thought of initiating a legal proceeding to preserve your legal rights can be overwhelming. However, it is important to act promptly to preserve evidence, investigate the cause of the accident, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

Southern California personal injury attorney James R. Gillen has recovered over $100,000,000 in verdicts and settlements for victims of serious personal injuries or those who have lost a loved one. Wrongful death matters are extremely time sensitive-TAKE ACTION NOW-call 877-619-3095 for a free consultation.


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American Medical Association information on physician ethics and standard of care and filing a complaint against a physician

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