Medical malpractice occurs when a healthcare professional fails to provide treatment that meets a standard of care expected in the medical community. This can include errors in a diagnosis, a treatment, or the management of a patient's medical condition. Medical malpractice can occur anywhere that patients are treated, including hospitals, clinics, and private practices. What […]
NC Wrongful Death
Negligence or intentional action resulting in the death of an individual can be debilitating for a family. wrongful death laws provide civil relief for the survivors of the deceased. north carolina like all states has a wrongful death statue defining precisely what qualifies as a wrongful death, who has a legal right to file a wrongful death lawsuit and the types of damages that may be recovered in the process of these actions. Knowledge of the law, including how it is defined, time limits for filing, how to prove wrongful death occurred, and possible damages that can be recovered are vital in any legal endeavors.
North Carolina statues 28A-18-2 defines wrongful death as one caused by a wrongful act, neglect, or default of another. North Carolina law states that a wrongful death claim may be brought before the courts even when the actions that lead to the victim's death also meet North Carolina’s legal definition for a felony. Wrongful death lawsuits are civil cases meaning that liability in the case is expressed exclusively in monetary damages. The burden of proof is lower in a civil case such as wrongful death compared to a criminal trial for murder or manslaughter. Additionally, wrongful death cases may be filed when criminal trials are already in process using the same set of facts.
Sadly, when a wrongful death does arise out a wrongful act, neglect or default of another, the estate’s representatives may file a civil claim to seek compensation for damages as a result of the death. In the case where the deceased had an estate plan, a personal representative may have been named within said plan. The person who was named may serve as the representative if they agree to do so, and the court agrees to their appointment. It is possible that the individual named in the estate plan refuses or is not able to serve as personal representative. It is also possible that no estate plan was in place. When these instances transpire, the court will appoint another individual to serve as a representative. It is commonplace for parents, adult children, and surviving spouses to serve as representatives.
Regardless of who serves as the representative, there is a time limit in North Carolina for filing a wrongful death claim. The statute of limitations on filing a claim is two years, which is measured from the date of the victim’s death. The claim must be brought within the time period during which the victim could have brought a claim for their injuries if they had survived.
The representatives who have brought the claim forward in a timely manner now must prove their case in court. The plaintiff must prove to the court that the defendant was negligent and that the defendant’s negligence directly caused the death of the victim. The plaintiff must show that there was a duty of care, the duty of care was breached, and that there was causation resulting in the death of the victim. In proving the duty of care, the plaintiff must show that there was some care owed to the deceased. For example, all drivers on the road have a duty of care to those crossing the street. Those in the cars must obey the laws of the road and proceed with caution when driving over a crosswalk. In the case when a driver strikes and kills a pedestrian, the plaintiff must prove that the defendant breached the duty of care of the deceased. The plaintiff must show that the defendant failed to obey traffics laws, such as not yielding to pedestrians with the right of way or speeding. However, it is not satisfactory to prove that all the defendant did was break the law or breached a duty owed in some other way. The plaintiff must also show that the actions of the defendant directly caused the death of the victim. Even in the case where a defendant struck a pedestrian crossing the street, they may not be held liable for the death if it was caused by defective breaks, for instance. That would not be in the control of the defendant, and they could not be held liable.
There is a burden of proof in proving the duty of care, breach of duty, and causation. The plaintiff must prove that the defendant is guilty of negligence by a preponderance of the evidence. As mentioned above the burden of proof is much lower in a civil case as opposed to a criminal case. The plaintiff’s evidence will be judged based on credibility and quality. If the plaintiff is not able to meet their burden of proof, no damages will be recovered.
If a plaintiff can prove that the defendant was the direct cause of the death of the victim, then the plaintiff will be compensated in the form of damages. Damages that may be pursed in a wrongful death case include medical expenses, pain and suffering the deceased may have endured, lost income, reasonable funeral and burial expenses, and loss of services. In North Carolina, it is also possible to recover punitive damages in wrongful death cases. Punitive damages differ from other types of damages because they are not intended to repay the victim’s family. Rather, these damages are meant to punish a defendant’s actions. The goal is to warn other individuals or corporations that such behavior will not be allowed.
Typically, wrongful death damages will be awarded to the spouse, children, or parents. The spouse usually has a claim of emotional trauma from the death, or lost companionship. Children, generally not adult children, can recover damages due to lost benefits of their relationship with the deceased parent. Parents who have had a minor child pass away can recover damages in the form of emotional trauma.
Wrongful death that results from the negligence of an individual is tragic. There can be a generational impact because of the death of a parent, spouse, or loved one. Taking proper legal action can help to ensure that a family does not suffer any further finical loss due to the wrongful death of the deceased.
If a loved one has been killed please contact us. You will speak with one of our wrongful death attorneys who will go over the best course of action. There is no fee for the initial consultation.
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