Every year thousands of people in the United States die in hospitals due to preventable medical errors. Families may be able to file a lawsuit seeking civil remedy for the death of their loved one.
There are two potential types of lawsuits when medical negligence has played a role in the death of a patient: wrongful death actions and survivor actions. Both of these types of cases can be brought in connection to medical malpractice cases. They are different in what types of damages are available. In most cases, the family of the deceased patient can file both actions at the same time.
Wrongful Death Actions
When filing a wrongful death action, the family of the deceased patient will typically be making the legal argument that:
- The deceased patient died due to a medical error that should not have occurred,
- The patient had close family members,
- There was a compensable loss suffered by the family members due to the death of the patient, and
- The close family members should be compensated by the doctor or hospital responsible for the medical error for their losses and damages.
In a wrongful death action the family is not suing for the harm that was inflicted on the deceased person but rather the damage caused to them because of the loss of their loved one. In New York, the legal representative of the estate of the estate brings the action for wrongful death. The estate can recover for loss of support for the decedent’s next of kin including lost earnings, loss of services to the spouse of the decedent, and loss of parental care and guidance if the decedent had children.
There are times when an injured person has initially survived an instance of medical malpractice but later dies from their injuries before he or she is able to file a lawsuit. In these cases, the representative of the estate can pursue a survival action. When filing a survivor claim, the deceased patient’s family is making the argument that:
- The patient died as a result of a medical error that should never have occurred,
- The medical error resulted in pain and suffering to the patient before they died,
- Had the patient survived, he or she would have had a claim against the doctor or hospital and been able to recover for the harm they suffered,
- The defendant doctor or hospital should not escape liability because of the patient’s death, and
- The defendant(s) should pay the damages to the deceased patient’s estate.
The survival action is brought in the name of the now deceased injured person. The damages that are recoverable include pain and suffering the deceased experienced between the time of the accident and their death. Any amount recovered goes to the decedent’s estate and is then distributed to the family members and other heirs and beneficiaries.
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