Wrongful death and medical malpractice claims often overlap. Both claims arise out of the negligence of another party. Both claims are tort claims and fall under the personal injury umbrella. However, that is not to say that they are the same.
Wrongful Death Claims
Wrongful death claims arise from the negligence of another party. That party can be a medical professional or health care facility, a private or public entity, or an individual. North Carolina law defines wrongful death as “[w]hen the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled the injured person to an action for damages . . . “ N.C. Gen. Stat. §28A-18-2.
In a wrongful death claim, the result of a party’s negligence is the death of the victim (decedent). The purpose of a wrongful death claim is not to compensate the victim for the negligence but rather to compensate the family of the victim for the loss of their loved one.
Wrongful death claims can arise out of a number of situations including:
- car accidents
- workplace accidents
- medical malpractice
- intentional acts, like homicides. Homicides, unlike the situations above, arise out of intentional acts and are criminal claims which result in jail time, fines, probation or other penalties. However, civil lawsuits for the death of the victim can arise, typically after a criminal trial has occurred.
The plaintiff in a wrongful death claim is the estate, or the personal representative, of the decedent. IIn North Carolina, the executor/executrix of the decedent’s will is the person who typically files suit on behalf of the estate of the decedent. If the executor/executrix or personal representative refuses to file a wrongful claim, a family member can petition the court to appoint someone to act on the family’s behalf and file suit.
Though the estate brings the claim, it is the beneficiaries of the decedent who recover the damages. Oftentimes, the beneficiaries are named in the decedent’s will. If no will exists, then the decedent is said to have died intestate and North Carolina’s intestate succession laws will identify who the beneficiaries are. The benefit of the beneficiaries recovering damages, not the estate, is that if there are any claims against the estate by creditors, those creditors will not be able to recover any of the damages awarded from a lawsuit. Rather, the damages will have their intended effect, to compensate the family for the loss of their loved one. Damages available in wrongful death claims include:
- medical expenses that arose before the decedent’s death, including surgery, doctors and hospital bills, prescriptions
- funeral and burial expenses
- pain and suffering by the decedent prior to his/her death
- lost wages. This includes future lost wages, as well as current.
- loss of companionship or comfort that the decedent would have provided to family members
- punitive damages. Punitive damages are only available in particularly egregious cases. They are awarded where the defendant’s negligence was willful or wanton, or malicious. North Carolina caps punitive damages at three times the amount of the compensatory damage award, or $250,000, whichever is greater. Unlike the other damages, punitive damages are intended to punish the defendant for their conduct, rather than to compensate the decedent’s family for their loss.
In a wrongful death claim, the estate of the decedent has 2 years from the death to file a claim. Failure to do so in that timeframe could result in the case being kicked out of court. There are exceptions to the 2 year statute of limitations so those contemplating filing suit should consult with a Charlotte, North Carolina attorney as soon as possible.
Medical Malpractice Claims
Medical malpractice claims arise out of the negligence of a medical professional or healthcare facility. North Carolina defines medical malpractice as either (a) a civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental or other health care by a health care provider; or (b) a civil action against a hospital, nursing home . . ., or an adult care home . . . for damages for personal injury or death . . .” N.C. Gen. Stat. §90-21.11.2(a) and (b).
In medical malpractice claims, the victim of the negligence often suffers life changing injuries. Medical malpractice lawsuits may arise out of a number of situations, with some of the most common being:
- failure to diagnose
- improper diagnosis
- prescription errors
- childbirth injuries
- surgical mistakes
- anesthesia complications
Typically the plaintiff in a medical malpractice claim is the victim of the malpractice. The goal of a medical malpractice claim is to compensate the plaintiff for his/her injuries and the effect that those injuries may have on the plaintiff’s life. The plaintiff may recover for:
- medical expenses
- lost wages
- pain and suffering
- punitive damages. Like above, these are available but only if the plaintiff can show malice or willful or wanton conduct by the negligent party.
Medical malpractice claims can result in death. In the case where the victim of the negligence dies, the family of the decedent may have both a medical malpractice claim and a wrongful death claim. In those situations, like in wrongful death claims, the estate is the plaintiff and the damages are intended to compensate the family of the decedent.
The victim of medical malpractice has 3 years from the date of the medical malpractice, or 1 year from the date of discovering the malpractice, whichever comes first, to file a lawsuit.
Our Charlotte, North Carolina Attorneys Can Help
Wrongful death and medical malpractice lawsuits are fact intensive and time specific and a lawyer can advise you as to what you need to prove, what you could recover and what statutes of limitations apply. The Charlotte, NC based lawyers at Rosensteel Fleishman, PLLC are experienced wrongful death and medical malpractice attorneys who can help you understand your rights and whether or not you should proceed with a claim. Please contact our office at 704-714-1450. There is no fee for an initial consultation.