You come across it everywhere – billboard ads, chatter between friends, Law and Order episodes. “Wrongful death” seems to be one of the most well-known legal terms, and even people who aren’t attorneys bandy it about in conversation. But few people know the full legal definition of wrongful death, which is quite complicated, and could fall under any of these categories:
Imagine that an obstetrician is delivering a child. In the course of the operation, he secures the incisions that he’s made with sutures. But the sutures break. The woman hemorrhages internally. The OB/GYN’s team gives her blood tranfusion after blood transfusion, but she keeps bleeding. Eventually, they have to perform a full hysterectomy on her. She is 30 years old. Her baby is born healthy. But she dies in the delivery room.
The difference between an OB/GYN and an office worker is that when the office worker has a bad day, he gets a papercut, whereas when the OB/GYN has a bad day, someone dies. To be fair, obstetricians work in high-risk fields. They’re on-call to operate with minute precision amid shouting and beeping machines at all hours. At times, too, catastrophic injuries occur that are largely beyond a practitioner’s control. Someone might have an anatomy that is so unique that it occurs in only one of 10,000 people. (So when the doctor makes an incision, he may not have any way of knowing which organ he will nick.) And if a woman dies on his watch, that night will haunt the doctor for the rest of his career. Nonetheless, the consequence of that night is that someone else will grow up without a mother.
Clinicians are deemed guilty of malpractice only when the plaintiff can establish that they did not observe the “standard of care.” That term is key, and it’s defined as “the level at which the average, prudent provider in a given community would practice.” The standard of care is not a requirement that everything goes right in a procedure. Rather, it’s the determination that any other cautious, reasonable doctor would have acted in the same way as the doctor in the lawsuit. Establishing that a physician violated the standard of care is tricky. But civil litigation itself is tricky. Doctors virtually never malpractice because they want to hurt their patients. Still, we believe that when someone dies in an operation, the doctor whose care the patient surrendered himself to should be held responsible. Not only that, the family should be awarded compensation for the damages they sustained.
1. Wrongful Death Defined
To explain the options available when filing a wrongful death claim, let’s go over some basic law that you’ll quickly get accustomed to. The first term to know is “tort”: A wrongdoing that one party takes against another. (Torts vary according to the wrongdoing. Med mal actions are often filed to address torts of negligence.) As a consequence, the party to whom the wrong has been done can litigate against the first party to claim justice or recompense or both. According to Louisiana Civil Code Section 2512.2, a wrongful death occurs when “a person dies due to the fault of another.” That other party could be a human or a corporate entity. But they have to have done something that a jury deems hurtful, reckless, intentional, or negligent, and that led to someone dying through no fault of his or her own.
2. Survival Action is Different than Wrongful Death
The family members of a decedent can file a claim on the decedent’s behalf. Which brings us to another term: “survival action.” According to Louisiana Civil Code Article 2315.1, if a person dies, his rights pass to the next group of people who the law entitles to collect for that person. That group is usually sorted into these levels:
The statute of limitations expires after one year, so to execute litigation, it’s imperative that anyone in these levels file a claim within that timeframe. Let’s return to Jane Smith, the 30-year-old woman who died in childbirth. Under Louisiana law, Jane Smith belongs to the estate of Jane Smith. Her husband, John Smith, may file as the executor or the administrator of the estate of Jane Smith. If he chooses not to, anyone in levels 2-4 can file in his stead. But we don’t recommend filing pro se. You’re better served working with the legal professionals at Smily Law Firm who are deeply versed in the different claims at your disposal.
3. Economic vs. Noneconomic Damages
Wrongful death claims generally subdivide into two categories: “Economic” and “Noneconomic.” Noneconomic losses are those suffered due to a loved one’s death. They include pain, grief, and the loss of guidance and companionship. Establishing a numerical value for these losses is difficult, but they usually figure as the bedrock topic for most of the case. Economic losses constitute burial, funeral, and medical expenses, plus the value of forfeited household services. Another important category is lost lifetime earnings.
Imagine that Jane Smith earned $50,000 a year at the time of her death. She was 30 years old. A plaintiff might calculate that Jane still had a 30-year career stretching before her. If she earned only her early-career salary for the rest of her life, then the plaintiff could argue that her survivors are entitled to compensation of $1.5 million. ($50,000 x 30 years.) The trauma that the woman’s surviving husband or child underwent cannot be healed with a payout of $1.5 million. But that money can be used to contribute to the raising of the child who was bereaved at birth – for piano lessons and school supplies and shoes he was going to outgrow. One day, that money might cover that child’s first down-payment on a house, or a ring that he wanted to buy his future wife.
Many doctors entered medicine because they believe in the principles of the Hippocratic Oath – to tend to the sick and cure their ailments. Nonetheless, doctors can make mistakes, and those mistakes become tragic when patients die as a result. If you have a relative that suffered a wrongful death due to medical negligence, you may be entitled to compensation. Contact Smiley Law Firm, a full-service personal injury firm based in New Orleans, Louisiana, to speak with a wrongful death lawyer today. We’re here to help relieve the stresses that come with grief and loss, as well as aid you in seeking restitution on behalf of your loved one.