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How to Prove a Wrongful Death Claim

a family at a funeral

The death of a spouse or a family member through the action of another is one of the most stressful and traumatic events that can occur in a person’s life.

Wrongful death statutes allow the representative of a deceased person (usually the decedent’s estate or a surviving spouse) to file a lawsuit against the party legally responsible for the death. If you have lost a loved one through the wrongful act of a third party, you have rights against the wrongdoer and could have a right to a substantial monetary recovery. This is an overview of how a wrongful death claim can be proven, and the damages you can reasonably expect in a successful case.

A wrongful death claim is appropriate when there is either an intentional act or negligence of a third party that causes the victim’s death. That is, when a victim who would have otherwise had a personal injury claim is killed through the intentional act or negligence of a third party, a wrongful death claim is substituted for a personal injury claim.

These are some examples of situations can give rise to a wrongful death claim.

  • A victim is intentionally killed by a third party. An example would be when a third party takes a gun and shoots and kills a person without mitigating circumstances. Another example would be when a person hits a pedestrian with their car intentionally and the pedestrian is killed
  • A victim dies as a result of medical malpractice. This refers to situations in which a treating health care professional provides substandard medical care, or fails to diagnose or takes other negligent action during the course of providing medical care to the decedent which caused their death. An example would be if a physician fails to properly administer medication in a timely manner which causes the death of their patient.
  • A victim dies in an auto accident involving negligence. This would be any situation in which a vehicle driver’s negligence caused the death of the victim. An example would be if the driver of a vehicle runs a red light, hits a car, and kills the driver or passenger.
  • A victim dies in an auto accident involving a drunk driver. If a drunk driver hits and kills a pedestrian or the driver of a vehicle, this could give rise to a wrongful death claim. This would be in addition to any criminal action, fines, and penalties.

In order to be successful in a wrongful death claim, you will have to prove the same elements as you would have in a personal injury claim if the victim had lived. These are some examples of what a claimant would have to prove in a personal injury case.

  • An intentional or reckless tort or act. This refers to a situation where a third party acts either with the intent to harm another or acts so recklessly that it is likely to harm another. An example would be if the wrongdoer throws a bomb into an office building intending to harm the owner of the building. A guest is in the office at the time and is injured or killed along with the owner. Even though the bomb thrower did not know that there was a guest in the building it is reasonably foreseeable that the owner of a building would have a guest now and again. Thus, the bomb thrower would be liable for any injuries to the owner of the building and the owner’s guest or their deaths.
  • Medical malpractice. A successful medical malpractice claim can be proved with evidence that the treating health care professional was negligent in providing medical care to the victim and that negligence caused the decedent’s injuries. For example, if a doctor improperly treated a patient while the doctor was intoxicated and the patient died as a result of the improper treatment and would have otherwise have lived but for the inadequate medical care, then this would probably be a successful medical malpractice claim and wrongful death case.
  • Auto accident involving negligence. This refers to a situation where the driver of a vehicle is negligent in the operation of a vehicle which causes an injury to another. An example would be if the driver of a vehicle is driving 30 miles over the speed limit, does not stop in time, rear ends another vehicle, and kills the driver or passenger. This would be the negligent operation of a motor vehicle and likely result in liability.
  • Auto accident involving a drunk driver. This refers to any situation in which the driver of a vehicle has an illegal blood alcohol level, drives the vehicle anyway, and kills a third party. In this situation, the injured party or wrongful death claimant would likely have a strong wrongful death case.

These are the types of damages which a wrongful death plaintiff can reasonably expect to recover in a wrongful death claim.

  • Reasonable medical expenses and funeral expenses for the decedent.
  • The compensation that the deceased would have earned or could have reasonably been expected to earn if the deceased had lived. This is based on actuarial tables and may require an expert to prove the decedent’s life expectancy and estimated earnings.
  • Pain and suffering endured by the deceased before death.
  • Unlike many states, in most situations New Hampshire law does not allow for punitive damages – which are designed to not only compensate the victim but to punish the defendant. However, New Hampshire does provide for “enhanced compensatory damages” when the negligence was particularly severe.
  • For the surviving spouse, damages are available for the loss of care, comfort, companionship, and guidance of the deceased.
  • For surviving children under the age of 18, damages are available for the loss of a familial relationship.
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