A wrongful death is one that would not have occurred were it not for another person’s (or entity’s) negligence, recklessness, intentional act, or unlawful act. If a party fails to take reasonable care, resulting in someone’s fatal injury, certain surviving family members may file a wrongful death claim in Atlanta. These claims have specific filing rules and deadlines that differ from other personal injury lawsuits.
What is a Wrongful Death Claim?
A wrongful death claim is similar to a personal injury claim. Both require the same elements of proof, except that the former addresses scenarios wherein the victim in question has passed away from his or her injuries. Filing a claim for wrongful death provides a way for surviving family members and beneficiaries to receive financial compensation from the at-fault party. It is a type of civil case, not a criminal case. It is possible for both types of cases to occur at the same time if the wrongful death involved homicide.
Wrongful death claims can take many forms. In our 40 years of experience, we’ve handled wrongful death lawsuits that involve car crashes, medical malpractice, defective products, slip & fall accidents, negligent employers, dangerous drugs, toxic torts, and criminal activities. We can help clients no matter what the circumstances of the loved one’s untimely death. Georgia’s wrongful death statutes provide rules for who may file, when, and how. Retaining an attorney can make the process much easier on you and your family.
Who May File a Wrongful Death Claim?
According to Georgia Code Section 51-4-2, only people with certain relationships to the deceased may file a claim on his or her behalf in Georgia. The privilege first goes to the spouse of the deceased person. If the couple had minor children, the surviving spouse will also bring the claim on their behalf. The spouse of the deceased cannot receive less than one-third of the total recovery for a wrongful death claim, regardless of the number of children. If no surviving spouse exists, the next party that can file is either the:
- Surviving parents of the deceased
- Personal representative of the decedent’s estate
The deceased person may have named a personal representative in a will or estate plan. If not, the courts can assign someone to this role during probate. If a personal representative brings the claim, any damages recovered go to the estate, for the benefit of the decedent’s next of kin. Damages may include lost wages and benefits, loss of care and companionship, medical expenses, funeral and burial costs, and pain and suffering the decedent endured before death.
How Long Do I Have to File a Wrongful Death Lawsuit?
The Georgia courts uphold a strict deadline by which someone must file a wrongful death claim, or else lose the right to do so. This deadline, called a statute of limitations, serves to protect defendants from lawsuits that come too far after the event in question. Waiting too long to file isn’t fair to the defendant, who may not be able to obtain evidence to disprove the claim.
In Georgia, you have two years from the date of your loved one’s death to bring your claim. Missing this deadline almost always leads to loss of ability to file. In some situations, the courts will pause, or “toll,” the clock. Wrongful death cases with accompanying criminal investigations will not start the clock until the criminal case ends. If the decedent’s estate has not been through probate, there is a five-year toll. That means you could have up to seven years after the death to file.
Common Causes of Wrongful Death
Wrongful death can occur under several circumstances. Anything that could cause a fatal injury might result in wrongful death. However, there are a few common situations that result in wrongful death more than others. Recognizing these causes can help you determine if you have grounds for a claim. According to the Centers for Disease Control and Prevention, here are the most frequent causes of wrongful death throughout the country:
- Unintentional poisoning. In 2014, 42,032 died from this cause. Unintentional poisoning can refer to medication mistakes and accidental drug overdoses, from both legal and illegal drugs. These cases may involve medical malpractice.
- Motor vehicle traffic accidents. There were 33,736 unintentional injury deaths from car accidents in 2014. Car accidents can cause fatal injuries to the chest, brain, and important organs. Almost all car accidents are preventable, negligence-related incidents.
- Unintentional falls. Falls are the leading cause of injury-related deaths in people aged 65 and older. Unintentional falls accounted for 31,959 deaths in 2014. Fatal falls can occur down stairs, into equipment, off roofs, and in the workplace.
Regardless of how your loved one passed away, we want to help. We will investigate your story and get to the bottom of who or what killed your family member. We will then tell you if we think your case has merit as a wrongful death claim in Atlanta. If we think someone else’s negligence caused or contributed to the fatal incident, we’ll help you fight for maximum compensation.
How Do You Prove Wrongful Death?
No two wrongful death claims are the same. There are, however, certain elements of proof all plaintiffs must bring to win a settlement or judgment award. A lawyer can help you understand these proofs and fulfill the court’s requirements. To show a defendant’s liability for your loved one’s wrongful death, you must first prove that a duty of care existed between the decedent and the defendant. For example, a doctor/patient relationship existed, or the deceased was an employee of the defendant’s.
Then, you must show breach of duty of care. The defendant must have been negligent in some way that posed an unreasonable risk of harm to your loved one. The jury must agree that the plaintiff’s statements are more than 50% likely to be true. Proving this element may require recreating the accident, speaking with eyewitnesses, and bringing in an expert witness to testify. For example, another doctor with similar experience could go on record stating that the defendant was negligent in his or her patient care, resulting in wrongful death.
Next, the plaintiff must prove causation. There must be a link between the defendant’s negligence and the death. The defendant’s actions don’t have to be the only causes of the death, but they must have at least contributed. The courts may split liability among multiple defendants in some wrongful death claims – for example, if a distracted driver caused the accident but a defective airbag contributed to the decedent’s fatal injuries. Finally, the plaintiff must prove damages. These are obvious in wrongful death claims, since someone died as a result of the defendant’s negligence.
Why Retain an Attorney?
For a claim as serious as wrongful death, you need to retain an attorney that has your vote of confidence. Kaufman Law, P.C. has decades of experience speaking for those who cannot speak for themselves. We can go up against major corporations, large insurance companies, and well-known employers if necessary to seek compensation for a death that shouldn’t have occurred in Atlanta.
We understand the elements a plaintiff needs for a successful claim, and how to gather any available evidence of wrongful death. This may include medical records, surveillance footage, or eyewitness interviews. When you entrust your case to us, you give your deceased loved one an excellent chance of obtaining justice, and your family a chance to secure compensation for your future. Contact us for a free consultation.