Sometimes, we lose someone we love due to someone else’s carelessness or reckless behavior. In those situations, it’s important to know a few things about filling a wrongful death lawsuit. There are a lot of questions about this and the process might not be simple. So we decided to share with you the 10 most common questions about wrongful death lawsuits to help you better understand the process.
What’s exactly a wrongful death claim?
Personal injury lawsuits and wrongful death claims are very closely related. They both allow you to seek compensations when someone is injured due to someone else’s negligence.
With a personal injury lawsuit, the law allows the injured victim to file a claim and seek compensation from the responsible party. This compensation is to cover the injured person’s losses.
But with a wrongful death claim, the injured person is not alive anymore so he/she cannot file a claim. So in this instance, another person steps into the place of the injured person and files a claim in his/her name to seek compensation.
Who can file a wrongful death claim?
This question depends on a specific state and its legal system. In general, most states allow the personal representative to file a wrongful death claim and this mostly refers to a close family member. In Arizona, wrongful death claims can be filed by:
- The spouse of the deceased person
- Children of the deceased person
- Parent or legal guardian of the deceased person
- Personal representative of the deceased person’s estate
Wrongful death claim – Do I have a case?
Determining if someone has a wrongful death case or not isn’t so easy to determine. Each case has a unique set of circumstances and facts. So in order to determine if you have a case, you will definitely need to speak to a lawyer. A personal injury or wrongful death lawyer should be able to help you.
How to file a wrongful death claim?
As before, this also depends on the state you wish to file a lawsuit. Usually, you first need to determine if you’re eligible to file such lawsuit. Then you need to work closely with your wrongful death or personal injury lawyer so you could file the claim before statute of limitation expires.
How to prove wrongful death?
Each US state has its own set of laws when proving wrongful death, but in general, the plaintiff must prove:
- The defendant owed a duty of care to the deceased
- The defendant breached said duty
- Breaching duty of care resulted the death of the deceased and
- Damages that resulted
How long do you have to file the claim?
The time you have to file a wrongful death claim (or any type of claim basically) is called the statute of limitations. This is not the same for all states, so you should definitely check with your personal injury lawyer. For example, in Arizona, the statute of limitation for a wrongful death lawsuit is two years from the date of death. Same applies for New York, California, Florida, New Jersey and many other states.
How much can you sue for in a wrongful death claim?
Usually, wrongful death claims allow you to seek compensation for both economic and non-economic damages. These compensatory damages should compensate the party for loses and the usually include
- Medical bills
- Lost wages for the time the deceased was in the hospital
- Future wages
- Pain and suffering of the deceased before death
- Burial and funeral expenses and
- Loss of companionship
Average settlement for wrongful death
Since every wrongful death case is unique, with its own unique facts, it’s really difficult to determine what’s the average settlement. But when you consult your personal injury lawyer or wrongful death lawyer, he will be able to give you a rough estimate of the settlement.
When hiring a personal injury or wrongful death attorney, you can discuss that he takes your case on a contingency fee basis. This means that he/she will only be paid if you will the lawsuit and you get compensated.
Is a lawyer really necessary?
Since wrongful death cases can be pretty complicated, we highly recommend that you hire a wrongful death lawyer. He/she will advocate for your best interest and if you have additional questions you can always ask him/her.
It’s not a surprise that healthcare providers are more likely to make mistakes at the end of the day, when they are tired after seeing many patients. This is supported by a recent study in JAMA Network Open and was also a topic on Forbes too.
The general conclusion is that afternoon fatigue is affecting many physicians. Based on this studies, some experts even suggest that you don’t visit your doctor later in the afternoon because the effects of later afternoon fatigue may compromise the patient’s safety.
Some doctors tend to order less of necessary testing/screening e.g. breast or colon cancer screening in the afternoon than in the morning. You might wonder if this has anything to do with medical errors. Well in this particular case, all patients were due for screening. However, the number of screenings ordered was highest in the morning and by the end of the day, those races were at least 10-15% lower. Many experts believe that fatigue is the main cause of this discrepancy. So based on these researches, primary physicians make mistakes in the afternoon that they wouldn’t in the morning.
Also, not only the primary physicians are the ones making mistakes due to fatigue. Did you know that radiology errors also increase as the day goes by? Some research says that the diagnostic accuracy drops by 4% later in the afternoon. This means that some fractures and nodules go unnoticed later in the day.
How to reduce medical mistakes
In order to reduce the mistakes caused by fatigue, healthcare providers could:
- Take breaks every few hours
- If possible try working in shorter shifts, up to 9 hours
- Step away from the computer after you’re done with a few patients
Of course even patients can contribute to reducing the number of errors by:
- Making appointments early in the morning
- Stay well informed about the screening options
- Make follow-up arrangements with your doctor.
In case that you or your loved one was misdiagnosed or received medical care and suffered an injury as a result, you should contact a personal injury lawyer to help you file a claim for compensation. A personal injury lawyer that has experience with medical malpractices will be able to provide you additional information on medical errors and inform you about your rights.
When it comes to personal injury claims, they all require you to have an experienced attorney who is well familiar with the process and knows the differences from cases involving auto accidents, nursing home abuse or neglect. But what are the main burning questions when it comes to personal injury law?
Is your personal injury claim valid?
If you want to pursue a successful personal injury claim, you need to be able to prove that your injuries are caused by someone else’s negligence. Extensive medical treatments are usually part of every personal injury case. However, not all personal injury claims have physical injuries. Some have non-physical harms or losses. A good example is if someone attacks your professional reputation or invade your privacy. These can all be good grounds for a personal injury claim.
How soon can you file a lawsuit?
This depends from one state to another. To be more precise, on the states ‘statute of limitations’. This statute basically determines how much time you have to file a personal injury claim. Of course the statute of limitation differs from case to case. Some states have a statute of limitation of 4 years for a personal injury lawsuit, but for medical malpractice this statute is only two years.
The best thing you can do is to pursue the lawsuit as soon as possible after your injury. This is because preservation of evidence is very important in these cases. Furthermore, a standard procedure involved in a personal injury case is investigation done by your personal injury attorney, which can take some time.
What is negligence exactly?
Negligence concerns actions taken in a specific situation by a ‘reasonable person’. For example, you would expect a truck driver (or basically any driver) to obey the traffic rules and to drive at full attention in order to avoid putting themselves and others at risk. In the event that they cause a car accident because they didn’t pay enough attention while driving, they can be liable for the accident.
So basically, someone is negligent if he/she fails to act in a way an ‘ordinary reasonable person would’ in a specific situation. Personal injury cases are generally found on negligence.
Will the person at fault be punished?
Personal injury cases are NOT criminal actions. They are civil actions. Jail terms cannot be sentenced to defendants in personal injury cases. The same goes for criminal fines. This is because there was no real malicious intent that caused the injury. The cause of the injury is negligence.
Nonetheless, in some rare cases, there can be punitive damages. Punitive damages have a goal to punish the defendants that were reckless OR didn’t act in the best interest of the public. The end result of punitive damages is to discourage defendants to behave in such way.
If you think that you have a valid personal injury case, because someone else’s negligence caused you harm, contact us today and let’s review your case together!
It’s already difficult enough if we or a loved one are going through a medical issue. Much less, to find out that a doctor could have saved some of that grief had they diagnosed the issue in the first place. Although this can be frustrating, a doctor can only do so much. Sometimes, they don’t have all the information they need in order to make a diagnosis. In this case, they will shy away from officially diagnosing it because a false diagnosis can be just as disastrous as not diagnosed at all. However, when a doctor has plenty to go on and misdiagnosis or failure to diagnose occurs and there are dire consequences, malpractice laws are in place to ensure a patient and their family receive justice.
Although it can be frustrating to pay large sums out to doctors and get no answers only for major issues to arise, it’s not always in the lap of the doctor. However, many times it can be. In order to prove malpractice, a person must do three things.
- Prove the doctor’s behavior was at the level of negligence
- Prove the patient involved had issues arise from the proven negligence
- Prove the doctor had an established relationship with the patient to show they had the necessary information to make a proper diagnosis
In order to prove a doctor was negligent, the information they had at the time is taken and compared to another competent doctor would have diagnosed. In other words, if there was an apparent mistake on behalf of the doctor that resulted, or could have resulted, in the patient suffering harm, this is considered negligence. Examples of a mistake along these lines can include, interpreting a test incorrectly, delaying diagnosis or dragging their feet on an important matter, leaving out important medical information on a chart, etc. There are many ways in which a doctor can be negligent however, it has to be legitimate negligence. For example, sometimes misinterpreting a test can happen if it’s a tricky prognosis. However, if any competent doctor would have caught a diagnosis that was missed on a test, this is where negligence can be proved.
Along with proving negligence, the standard of care must be proven as well. This means that it must be proved that the needed diagnosis is something that would have been given under any standard care of the average doctor. Lastly, they must prove that this lack of a diagnosis or misdiagnosis was the root cause of the harm a patient suffered.
To sum it up, yes, a person can allege malpractice on the grounds of failure to diagnose. However, it must be under certain terms and be proven without a doubt.
Are you or someone close to you got injured as a result of a medical procedure? Is the doctor who took care of it wrong? Can you engage his responsibility?
Definition: medical malpractice
The medical liability regime has long been based on jurisprudential principles. The Mercier judgment rendered by the Court of Cassation on May 20, 1936 (Cass civ 20 May 1936, DP 1936, 1, p.88) had recognized the contractual nature of the doctor’s responsibility, based on the demonstration of a fault on his part, of a causal link and of a prejudice suffered by the patient. This decision stated that the obligation of care resulting from the medical contract to be paid by the doctor was an obligation of means.
It was thus recognized that the physician could not commit himself to the cure of his patient but only to give him attentive care, in a conscientious manner and in accordance with the acquired data of the science. Following the increase in litigation and the proliferation of decisions of case law devoting cases of responsibilities by right, without fault, the legislator intervened to frame this regime. Now there are laws that regulate the matter, establishing a principle of legal medical liability.
Note: the fault is the event giving rise to liability. It is a question of any act which led to the damage, emanating from the caregiver.
Except in the case where a defective health product can be implicated, the doctor’s responsibility can only be engaged in the demonstration of a fault. This means that his engagement is an obligation of means, which had already been recognized by the Mercier judgment.
Example: here is the difference between the obligation of means and obligation of result. In the first case, the doctor agrees to do everything possible to treat his patient. In the second case, he would commit himself to heal his patient.
Medical professional insurance
Typology of medical faults
The responsibility of the doctor or the private health facility may be engaged for any fault committed. There are usually two types of mistakes, the doctor being bound by an obligation of science and conscience.
The technical fault
It is about the error made by the doctor by ignorance of the uses and scientific rules that make his profession. It can be a question of a fault: diagnosis; in carrying out the act; in the choice of treatment; medical monitoring.
The fault against humanism
It corresponds to the poor appreciation of the caregiver-patient relationship, in accordance with the ethical rules of the profession.
This is the violation of the obligation to obtain the free and informed consent of the patient. Before any medical intervention, the doctor must obtain the agreement of the patient. This supposes that the latter was enlightened on his health conditions, on the proposed medical procedure, on the therapeutic hazard and the generally accepted and observed consequences for the type of intervention planned.
Good to know: the doctor, therefore, has a duty of fair and clear information. It is also a violation of medical confidentiality: in addition to the oath of Hippocrates, respect for the privacy of the patient and his right to secrecy is recalled by the Law. Except in the case of legally accepted exceptions, the secret covers all the information concerning the person coming to the knowledge of the doctor, of any member of the staff of these establishments, services or organizations and of any other person in relation, by his or her activities, with these institutions or organizations.
Medical malpractice: redress and compensation
Anyone who is a damaged or who considers himself or herself to be a damaged of damage attributable to medical malpractice must be informed by the professional, the health establishment, the health services or the body concerned about the circumstances and causes of this damage in the case. In terms of procedure, the fault of the physician or health care institution must be reported as well as the harm and the causal link between the two. There is a multiplicity of possible harms: moral, bodily, etc.
There is a first friendly phase in which the damaged lodges an appeal. The court draws up an expert opinion and gives an opinion on the cause and the circumstances of the damage.
When it is found that a fault involves the responsibility of a health professional, a health establishment, a health service, the insurer who guarantees the civil or administrative responsibility of the person considered responsible by the court shall address to the damaged or his successors an offer of compensation for the full compensation of the damage suffered within the limits of the insurance contract guarantee.
If you have suffered a severe injury from a defective medical device, and you are wondering if it makes sense to sue the manufacturer, we may have a few tips for you. As an important decision as it is, you might need some additional information and input from a skilled attorney to answer it.
How to know if you have a valid case?
To have thoroughly answered the best advice is to consult us by phone 480-757-5000
This is where the years of experience and seeking justice for clients before you will come into play. Professionals can always see the standpoint of a case so they can decide if it’s worth pursuing from a legal and financial perspective.
Your lawyer should always make sure that you are within the statute of limitations and that you have sufficient evidence to prove your case and compare your situation to other similar cases to estimate how much compensation you might be able to recover. A reasonable probability lawyer will analyze your situation, and examine your case to other similar cases to determine how much benefit you might be able to recover. Also, a good lawyer should analyze the defendant’s perspective and explore the possibilities of counterclaims.
What do I need to prove to win a products liability case?
This is a product liability lawsuit if you are making a defective medical device case.
To sustain your case you need the following elements:
• You sustained an injury
• The product you used was defective
• The product’s defect caused your injuries
• You were using the product as specified in the time of the injury
Who might be liable for my injuries from a defective medical device?
In defective product case, you may begin with the manufacturer of the device, but there is a whole chain of commerce liable for your injuries as well including the suppliers, distributors, wholesalers, and retailers that were connected to the development, creation, and sale of the defective product.
What are the potential outcomes of a products liability lawsuit?
A trial can take a lot of time and effort, much of it will be boring, frustrating and time-consuming. Be prepared to see less than appealing aspects of human nature on display during the trial, and after all planning and preparation, and energy wasted, the jury might not rule in your favor, and you will not end up any better than when you began. The odd advice is, you should check out some television, cause sometimes, it can manifest some interesting detail that might have validation in real trials.
With a skilled liability lawyer who can present the case with strong evidence and arguments, you could prevail and feel vindicated for taking the time and effort to make the case to trial.
There’s a lot of elements involved. We at Schenk and Podolsky won’t take your time into settlements that can be disputed. We work hard and appreciate our clients. Call today for free consultation.
There are so many myths and misconceptions surrounding medical malpractice. Some types of cases are making the news with wrongful publication. For example, enormous payouts, making a medical malpractice lawsuit seem like winning a lottery. The fact is no-one wants to experience the error of negligence in medical care. However, if you have been the victim of medical malpractice, you should know more about this type of lawsuit.
Most medical malpractice Claims are Frivolous
Not true. The myth is that basically suing the doctor and another medical professional was merely a matter of an unhappy patient seeking revenge and attention. But, according to studies, only 3 percent of cases are considered frivolous.
Medical Malpractice Cases Has result in Huge Medical Payouts
Fewer than 1 percent of medical malpractice claims result in award 1$ and higher. Most people only compensate for medical bills. Depending on the case, some may be compensated for ost wages, pain, and suffering, etc.
Medical Malpractice Cases are filled for Money
Many people just want answers in these types of cases. Filling suit will force a medical professional who made a mistake to testify so patient and his/her family can find out what went wrong.
Medical Errors are a Realistic and Expected Risk
Very few individuals would expect to get harm by a doctor. There are complications sometimes. Sometimes the patient can set the chain of events that could lead to injury. In many instances, the error was one that could have been prevented if policies and procedures were being followed.
I’m not able to afford an Expensive Medical Malpractice Claim.
Medical malpractice suits are costly to litigate. These cases often involve thousands of pages of medical records and other documents, testimony by experts and other witnesses, and raise complex technical questions of law and medicine.
In additions, There can generally be interventions from powerful companies with massive resources, including insurance companies. However, these costs should not dissuade families from pursuing the claim. So, families should be aware that they can afford to get the help they need.
Medical Malpractice Claims Cause Health Care Costs to Rise
The new date we gathered is that while health care costs have risen, medical malpractice claims have decreased. Blaming the rising costs of health care and insurance, in general, doesn’t’ hold any truth.
If you have been injured at Mesa area, you can call our office for a free consultation with any question you might have. Don’t believe everything you heard about medical malpractice lawsuits until you speak with professionals. We can determine the facts about the case and the liability of going to court.
Malpractice lawyers will take any case.
It’s not easy to retain the lawyer services. Talking the case, lawyer thinks there is a good chance of winning it, and taking on a situation that doesn’t have a good chance of winning a settlement isn’t a good time investment for a lawyer. It’s always best to consult with professional so call us today +1 480-757-5000!
A list of the most common Medical Malpractice Claims
With all of today’s advanced technology, negligence and medical malpractice situations unfortunately still occur. Sometimes it’s due to a hospital being overfull, and the staff is overworked, and sometimes it’s because someone just wasn’t paying attention like they should have been. While it’s true that most doctors and nurses do their best providing care to their patients, deadly or life-altering mistakes are still possible, which is why we have medical malpractice claims. Here is a list of a few of the most common medical malpractice claims:
Misdiagnosis or Delayed Diagnosis
These are common claims due to the fact that there are some diseases out there that can be difficult to identify, as well as the fact that some ailments hide behind others. The most prevalent misdiagnosis or delayed diagnosis claims that arise most often are in regard to cancer in adults, and meningitis in children. Furthermore, situations where someone comes to a hospital, and then is discharged, only to have recurrent and even fatal symptoms, are common malpractice claims.
Another common medical malpractice claim is mistakes made in prescribing or administering prescription drugs. This particular error always turns out to be a major problem. While most of these errors occur in patients over the age of 60, it happens to those in other age groups as well. These mistakes are generally made when a doctor or nurse fails to properly review the patient’s medical history and prescribes a drug that works detrimentally against another prescription the patient is taking, or mistakenly prescribes the wrong drug.
Unfortunately, surgery errors are another all-too-common medical malpractice claim always showing up on the reports. While a majority of these particular claims reported are non-life-threatening issues, like accidental nerve damage, and leaving a foreign object, like a medical sponge, inside the body, there are other, much more serious problems. Sometimes these claims are made against surgeons due to an inability to control bleeding, and there are situations where surgeons have operated on the wrong body part or even the wrong patient. These types of errors are always due to very poor or missed communication.