Family of loved ones killed by medical malpractice may seek compensation in a wrongful death lawsuit.
If a loved one is a victim of medical malpractice, he or she is entitled by law to file a lawsuit against the responsible party and recover compensation. However, what happens if the medical malpractice results in the death of your loved one? Although the decedent is not physically able to file a lawsuit then, compensation may still be sought by close family members in a wrongful death lawsuit.
What Is Wrongful Death?
Under Ohio law, wrongful death occurs when a person’s death is caused by the neglect, wrongful act or default of another. In general, any time where the actions of a person would have allowed the deceased to sue (had they lived) the person for damages is a wrongful death. This type of lawsuit is often filed following instances of medical malpractice, but is also common after fatal car accidents, workplace accidents and other deaths that were caused by a person’s negligence.
Although criminal acts (i.e. murder or assault) sometimes form the basis of a wrongful death lawsuit, it is important to understand that the lawsuit is separate from the criminal proceedings. Since wrongful death is a civil action, it is not affected by the outcome of the criminal proceedings. In addition, the presence or absence of criminal charges does not influence the right to file a wrongful death action.
Who May File and Recover Damages?
In Ohio, persons suffering losses because of the decedent’s death cannot sue the responsible party directly. Instead, the lawsuit must be brought in the name of the personal representative of the decedent’s estate. Although in the personal representative’s name, the lawsuit actually seeks damages on behalf of eligible family members.
Ohio law presumes that the surviving spouse, children and parents of the deceased have suffered losses because of the wrongful death. However, other family members may also recover compensation, if they can prove a compensable loss.
What Losses Are Compensable?
Losses that are compensable under Ohio statutes include a wide variety of losses such as:
- Loss of decedent’s services
- Loss of decedent’s reasonably expected earning capacity
- Loss of prospective inheritance
- Loss of companionship, care, instruction, advice, etc. of decedent
- Mental anguish
Any compensation recovered in the lawsuit is distributed to the beneficiaries based on their degree of relation to the deceased. For example, if all beneficiaries are of the same degree of relation (e.g. they are all the deceased’s children), the compensation is divided equally. However, if the beneficiaries are of different degrees (e.g. spouse and children of the deceased), the court will decide how to divide the award among them.
Consult an Attorney
If you have lost a loved one while under a doctor’s care, it may not be immediately evident whether medical malpractice is to blame. An experienced medical malpractice attorney can work with medical experts to pinpoint the true cause of death and advise you further of your rights to obtain compensation under the law.