For most of us, the last thing we want is to experience accidents while in the hospital. A misdiagnosis may spell the difference between life and death.
Sure, the effect is non-fatal in some medical negligence cases. But what if a patient dies due to medical malpractice? What should you do? How do you hold the negligent party accountable? Can you sue a hospital or its employees?
The truth is that if someone you know is a victim of medical negligence resulting in death, you can do something for them. You can either take civil action against the offending party or file a claim against them to receive compensation. Whichever step you take, there are things that you need to know first. Check them out below.
1) What Makes Up A Wrongful Death
Wrongful death is the death of a person due to negligence or misconduct by another person. A lawsuit filed for this is a civil action. Note that a civil action is different from the usual criminal charges. It also differs from manslaughter.
Wrongful death can happen in situations like motor accidents, criminal activity, or manufacturing defects. They may sound like they rarely occur, more so in larger cities. But, a study by John Hopkins Medicine suggests medical errors are the third leading cause of death in the U.S. There are some reasons for someone to file a wrongful death claim from medical negligence. Among them include, but are not limited, to the following:
- Negligence by any healthcare provider employed by the hospital
- Negligence by the hospital with its staff and employees, equipment, and medical care provided
- Surgical errors
- Pregnancy and childbirth complications due to clinical negligence
- Errors in the administration and/or prescription of medicines
Other errors that hospital staff like nurses may commit resulting in wrongful death claims include:
- Labor and delivery errors for pregnant patients
- Delayed diagnosis
- Medicine prescription and administration errors
The hospital as a whole can also be held liable for these reasons:
- Hiring improperly-licensed healthcare providers
- Errors in patients’ medical records or patient chart
- Failure to notify the attending physician of any changes in the patient
- Administering incorrect drug dosages or giving medicine during the wrong time
Physicians, nurses, or anyone who had direct contact with the victim is often held liable for wrongful deaths from medical negligence.
However, there are instances when the doctor who had attended to the victim is an independent contractor. It means that they’re not an official employee of the hospital. It may be harder to file a lawsuit against a hospital if that’s the case. Unless, of course, you have a competent lawyer who’s experienced enough to work around such situations.
2) How To File A Lawsuit
Medical negligence or malpractice laws differ from state to state. Hiring a lawyer will help you better understand the rules of where you live. For example, if you live in Florida, you can hire a Tallahassee personal injury lawyer who has extensive knowledge of Florida’s laws on wrongful death claims.
Personal injury lawyers specialize in what’s called tort law. Tort law covers any wrongs or injuries, private or civil. Aside from accidents, they also handle medical malpractice and wrongful death. Be sure to hire only attorneys with experience handling these types of cases to increase the chances of winning or getting compensated.
Pieces of evidence to gather
Before taking civil action or filing a wrongful death claim, you’ll need to gather evidence of the hospital’s malpractice and negligence. Prepare documents such as:
- Medical records,
- Proof of communication from the healthcare provider, and
- Bills or receipts.
Note that these documents should prove that negligence from the decedent’s physician or nurse clearly and concretely.
To really prove medical negligence, your evidence must provide:
- The medical provider/hospital’s duty: the legal duty of the medical provider/hospital to their patient,
- Their breach of responsibility: the acts or lack thereof that breached their legal obligation,
- The causation: the action or inaction of the medical provider/hospital that caused injury/death, and,
- The damages: what happened to the patient as a result of the causation
Who should file the case?
While a representative for the eligible relatives is often the one filing the cases, this still depends on where you are. The victim’s spouses, children, or parents (if unmarried) may represent in all states. In others, grandparents and siblings may do so. If you happen to be unrelated to the victim, you may need to cooperate with their immediate family.
Though a rare occurrence, the courts will decide who will file the case or claim if the family can’t agree on who should represent the deceased.
3) Challenges Of Filing A Lawsuit
Wrongful death from medical negligence may be one of the most difficult cases to file. Some factors exist that hinder you from doing so. They include:
- Malpractice insurance: There are some cases wherein your attorney will decide to turn down a lawsuit. It depends on the possible defendant’s malpractice insurance. A doctor or a hospital may have enough malpractice coverage that your lawyer may not sue them. Your lawyer will want you to face at most only one defense attorney. That’s because, for doctors with malpractice insurance, the hospital and the insurance companies will each assign them a lawyer if they are sued.
- Statute of limitations for wrongful death: Statute of limitations may also affect your ability to file a wrongful death claim. There’s a period when you can still be able to sue the hospital or medical provider. It’s, at most, three years within the death date in states like Wisconsin. Others only have a maximum of two years. You can understand this better with the help of your attorney.
There’s also a statute for surviving patients that die as a result of malpractice. It’s a survival statute. The period of filing this can be different from the one mentioned before. If family members fail to file the lawsuit during the given period, they may be prohibited from proceeding further.
However, whether or not the malpractice results in death, and despite the challenges, you must file a lawsuit. You must seek professional legal help to try to overcome the difficulties. The goal is to discourage the liable party from repeating the same mistakes to others or anyone you may know.
4) Compensation Claims And Settlements
By filing a wrongful death lawsuit, surviving family members can seek compensation for the damages. These may include the following:
- Funeral and burial expenses
- Medical bills
- Loss of income/wages
- Loss of love/guidance/comfort
- Loss of consortium
- Pain and suffering
Monetary damages are often divided into two types: economic and non-economic. The first three points in the list above are economic damages. They’re tangible as they often have supporting documents like receipts. Damages like the last three in the list are considered non-economic damage.
Settlements for your compensation claims can differ depending on your state. In California, you’re paid a lump sum. The attorney’s and court fees will then be deducted from the total. The remaining amount will be distributed to the victim’s heirs. These heirs are usually the surviving family members. Some states may even choose which relatives receive the compensation for the damages.
Types of settlements
There are two ways in how wrongful death settlements are awarded to the claimants. These are:
- Structured settlements, and
- Lump-sum payout.
Structured settlements are the verdict’s total amount split into monthly payments. It will be distributed to the victim’s family members. However, anyone entitled to the settlement must first agree to this method.
Lump-sum payouts are the entire amount awarded to the victim’s family in one go. The amount must be agreed upon by the concerned parties involved. It should also include settlements for both economic and non-economic damages.
Like most things, there are pros and cons to the structured settlement and the lump-sum payout.
How much can you expect?
You may be wondering how much you can receive from this. The average is around $500,000 to $1 million or more. The median amount for a medical malpractice settlement is $250,000. It will still depend on the details of your case, though.
Settlement amounts can be computed with consideration of some factors. These are often similar to the compensation claims and may include:
- The age and health of the deceased
- Financial support/services the deceased would’ve provided
- Needs of their surviving dependents
- Funeral and burial expenses
- The last medical expenses of the deceased
It’s a hard pill to swallow for some, but the money is meant to be the worth of your deceased loved one. Working with your attorney will help you settle on the best amount possible. It’s to ensure you get fairly compensated for all the losses.
Do What You Must For Yourself And Your Loved One
When someone succumbs to death due to medical negligence, an apology won’t cut it. Around 251,454 people die because of errors in the hospital. Therefore, Medical professionals must be held accountable should they perform malpractices at work.
Sometimes, it may be hard to file a wrongful death claim. That’s why you need to work with an experienced lawyer. However, you should do it, no matter how challenging the process can be. After all, it’s the right thing to do when someone you know dies because of medical negligence. More importantly, it will lead to patient awareness and fewer medical errors in the future.