Who Can File a California Wrongful Death Action?
When a person is killed due to the intent or neglect of another, under California law certain family members of the victim can file a wrongful death suit against the responsible party. The responsible party could be an individual or an entity, such as a car manufacturer. Wrongful death suits provide a way to compensate family members for their loss.
Who Can File a Wrongful Death Claim?
If a person is named as the "personal representative" in a victim's will, that person may bring a wrongful death lawsuit. If no such person is named in the will, then under California Code of Civil Procedure Section 377.60(a) the following people can bring a wrongful death claim:
- the victim's surviving spouse;
- the victim's domestic partner;
- the victim's surviving children; or
- the victim's grandchildren if there are no surviving children.
If there are no surviving children or grandchildren, a wrongful death lawsuit may be brought by anyone who would be entitled to inherit property by intestate succession. California intestacy law allows the closest surviving family members to inherit. These family members could be parents, siblings, grandparents, or other extended family.
Under Section 377.60(b), parents, putative spouses, and stepchildren may bring a wrongful death claim if they were financially dependent upon the victim. A person who does not fall into one of these classes cannot bring a wrongful death suit, no matter how close the relationship may have been.
How Many Survivors Can File a Claim?
Importantly, only one wrongful death lawsuit may be brought when a person dies. Therefore, it is crucial that every family member who may be entitled to compensation be made a part of that lawsuit. When there are multiple people entitled to compensation, the court will do its best to divide an award as equitably as possible based on the needs of the parties.
What Damages Does a Claim Cover?
Although no financial award can replace what was lost, California's wrongful death statute is intended to provide substantial compensation to surviving family members to help them move on with their lives. A wrongful death suit can provide a surviving family member with compensation for lost income, loss of companionship, loss of service, as well as medical and funeral costs. An experienced wrongful death attorney can help victims get the compensation they deserve.
In most situations, a wrongful death claim must be brought within two years of injury or death. However, wrongful death claims for medical malpractice must be brought within one year of discovering the malpractice, or within three years from the date of the malpractice, whichever comes first. Under Section 911.2(a), for wrongful death claims against local or state government, an administrative claim must be made within six months.
If you suffered the loss of a loved one due to the intent or neglect of another, the Law Offices of Scott D. Hughes can help. We are dedicated to providing vigorous and compassionate representation. Scott will work to make sure that you get the maximum financial recovery possible. Please contact us at 714-423-6928 for a free consultation.
On Tue, Jul 26, 2016 at 12:29 PM, Scott Hughes <scott@scotthugheslaw.com> wrote:
Orange County Medical Malpractice Claims Explained
When a healthcare provider's negligence causes a patient harm, the victim can bring a California medical malpractice claim. All professional healthcare providers have a duty to carry out their job with reasonable prudence. Special rules govern medical malpractice claims, so if you or a loved one needs to file a medical malpractice lawsuit, it is imperative to hire a lawyer who is experienced with these types of cases.
How Liability Is Determined
Liability exists when a healthcare provider breaches the professional standard of care, and because of that breach, the victim was harmed. In California, the standard of care has been defined as "a reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances." For physicians, the standard of care covers both diagnosis and treatment.
Whether malpractice occurred is a legal question, but the answer usually depends heavily on expert testimony from other healthcare professionals. Winning a malpractice claim requires knowing the legal burden and preparing the necessary evidence. It is usually important to hire a qualified expert witness and ask that expert the right questions.
Rarely is no expert testimony needed; however, in Ales v. Ryan, 8 Cal.2d 82, 93 (1939), the court held that sewing up a surgery patient with a cleaning sponge still inside of her was so obviously negligent that no expert testimony was necessary. It is crucial for medical malpractice victims to consult an attorney to determine whether and how much expert medical testimony will be required to prove their case.
California's Statute of Limitations
Under the California Statute of Limitations, medical malpractice claims must be brought within three years, or within one year of discovering the malpractice, whichever comes first. Any claim not brought within this time frame is barred.
Medical malpractice claims take time to investigate and prepare, so those who believe they have a medical malpractice claim should contact an attorney right away to begin working on their case.
Damages
There are three main categories of damages that medical malpractice victims can be awarded in California: Compensatory damages, non-economic damages, and punitive damages.
- There is no cap on compensatory damages, which seek to compensate victims for their additional medical costs and any lost wages associated with their harm.
- Non-economic damages, which compensate victims for their pain and suffering, are capped at $250,000.
- In cases in which harm was caused by the egregious negligence or recklessness of a healthcare provider, punitive damages could also be awarded. California places no cap on punitive damages.
Contact a California Medical Malpractice Attorney for More Information
At the Law Offices of Scott D. Hughes, we fight hard to get victims of medical malpractice the compensation they deserve. Scott knows how to use medical evidence and expert testimony to meet the legal burden in such cases. If you would like to discuss your potential claim, or if you would like to learn more about our attorneys, please call our office today at 714-423-6928 for a free consultation.