Wrongful death is a term most Californians are familiar with, but because of its ambiguity, aren’t quite sure how it’s litigated. What goes into prosecuting a wrongful death case in civil court can vary depending on the circumstances that give rise to the death. Ultimately, enlisting the help of a wrongful death attorney is critical in order to see justice served. The information below can help you establish a baseline and a better idea for how to move forward if you believe you have experienced a wrongful death in your network.
This article will take you through three different types of cases in which a wrongful death could be pursued:
Before we dive into the specifics of these categories, there are a few definitions that should be covered to help provide some context throughout this article.
As the title implies, wrongful death tried in court arising from general liability refers to a death occurring as a result of a more “general” act. The most common of these acts are automobile-related accidents. In fact, 238 automobile-related deaths were reported in Los Angeles in 2020, despite the total amount of traffic being down by 40-70% during the year. Automobile accidents remain one of the leading causes of death across the country, and Los Angeles is no different.
Intentional or unintentional acts qualify as wrongful death. In case you’re wondering, that means that a murder can be litigated in civil court as a wrongful death case.
Garrett Fry, partner at Belgum, Fry & Van Allen, states, “Every murder is a wrongful death,” but goes on to explain the difficulties of pursuing such a case as wrongful death in civil court. More on that later.
Even if you consider the wrongful death accidental rather than intentional, you still want to strive to find the best wrongful death attorney to help sift through the evidence of your case. Using the example of an automobile accident as the cause of wrongful death, a wrongful death attorney may identify those responsible for the death; some of whom you would not necessarily expect. These can include:
Ultimately, if negligence on any level ends up being the cause for wrongful death, then wrongful death attorneys like those at Belgum, Fry & Van Allen will consult with you on whether or not you have a case worth pursuing.
Keep in mind that there is a distinction between holding a wrongdoer accountable in civil court versus criminal court for a wrongful death. This distinction is important because the burden of proof is different between the two courts. In criminal court, proving beyond a reasonable doubt that the wrongful death was a result of murder, let’s say, is the burden of proof for the prosecution. In civil court, only a preponderance of the evidence is needed to sustain a jury verdict.
The most famous example of this is the O. J. Simpson trial in which the jury of the criminal proceedings delivered a “not guilty” verdict citing that the defense provided a shadow of a doubt. However, Simpson was found liable in the civil case that came after the criminal trial. Even though Simpson was found liable in civil court, the family still has not received compensation for the damages the jury allotted in that verdict.
Garrett Fry brings up this example because it demonstrates some of the practical difficulties of recovering damages in a wrongful death case, depending on the nature of the defendant. Fry simplifies it by giving us a couple key points to remember when it comes to trying wrongful death cases.
The availability of insurance to cover the circumstance that caused the death is critical. Intentional acts that cause death (murder) are often excluded in insurance policies. Without insurance, the only source of compensation comes from the assets of the person or entity you are suing.
Suing individuals without insurance should be approached with caution because of issues of “collectability.” Pursuing a wrongful death case in civil court against a person of limited economic means and no insurance carries the very high risk that no money will be recovered. Even a person that appears to have some assets may have their assets set up in a way that they cannot be reached by a judgment.
All this is to say, cases like these can be very layered and complicated. The associates at Belgum, Fry & Van Allen are some of the best wrongful death attorneys in Los Angeles because their free evaluation form lets them assess the viability of your case from day one.
As the name suggests, you can pursue a wrongful death case as a result of medical malpractice. The way Fry puts it, “If we can prove that a doctor or nurse did something lower than the standard of care, you may have a wrongful death medical malpractice case.”
On the flip side, if there are inherent risks associated with a procedure or prescriptions that the hospital, doctor, or pharmacist makes you aware of, and you agree to pursue that medical direction anyway, the healthcare provider will point to that in their defense in a wrongful death case. However, if you believe that a loved one was killed due the negligence of a healthcare provider, a wrongful death attorney that specializes in medical malpractice cases can discuss your rights with you.
There are critical distinctions between wrongful death cases arising from general liability versus medical malpractice that must be kept in mind. The primary difference in outcomes between wrongful death via general liability and wrongful death via medical malpractice are the statutory maximums for damages.
With general liability, there are no caps for damages that can be paid out. If the jury determines the victim is owed $100 million in damages, then the defendant will have to pay $100 million (assuming “collectability” is viable as previously discussed). However, in medical malpractice wrongful death cases, California law limits the damages to $250,000 for pain and suffering.
Wrongful death via elder abuse is one of the core specialties of Belgum, Fry & Van Allen. As a Los Angeles-based wrongful death and elder abuse law firm, they have had enormous success in litigating wrongful death in elder abuse cases.
One of the key considerations Brian Van Allen, the lead elder abuse attorney at Belgum, Fry & Van Allen, points out is that wrongful death can be tried whether it comes from a skilled nursing home, or an assisted living facility. A skilled nursing facility is considered a medical institution in which healthcare providers like nurses and licensed therapists are employed to treat the patient-residents.
An assisted living facility does not necessarily require medical backgrounds from its staff. These institutions serve more of a caretaking role and help their residents in day-to-day tasks like showering, transportation, and dressing.
However, if a wrongful death occurs because of neglect or abuse, the case can be pursued under elder abuse. Wrongful death can be pursued given the core definition of wrongful death, as an act committed intentionally or unintentionally.
Similar to medical malpractice cases, wrongful death damages from elder abuse are capped at $250,000. However, there are additional financial remedies in elder abuse cases that are not available in medical malpractice cases. The first is “pre-death pain and suffering” damages. In elder abuse cases, there is compensation available for the pain and suffering that the victim experienced prior to death. While this amount is also capped at $250,000, it is a separate cap from ordinary wrongful death damages.
The second additional remedy is punitive damages. These are damages meant to punish the wrongdoer for their bad acts. These are not capped, though there are certain Constitutional limits on punitive damages awards. Lastly, unlike both general liability and medical malpractice cases, attorney fees and costs can be obtained in elder abuse cases.
If you live in Los Angeles or the greater Los Angeles area and you’ve had a death in your family that you believe occurred at the hands of an intentional, negligent, or careless act, don’t wait to consult a wrongful death attorney in Los Angeles to chart out the legal path that will work best for you. Ultimately, law firms like Belgum, Fry & Van Allen exist to help bring closure and financial relief to families who fall victim to wrongful death.
Belgum, Fry & Van Allen work on a contingent fee basis. This means that there is no upfront cost to you to pursue a case and your attorneys are only paid if they win. For more information, fill ut the free evaluation form or call us at 626-914-9806.