As adults, almost all of us have experienced the loss of a friend, a family member, or a loved one because of death. The emotional toll on the survivors can range from grief to anger to a sense of absolute helplessness. What can be done?
When a person’s death is prematurely caused as a result of the negligence of another, a lawsuit may be brought to recover monetary compensation. Such a lawsuit is called a “Wrongful Death” case. A wrongful death lawsuit considers two categories of possible damages where compensation can be obtained: 1) the conscious pain and suffering of the injured party before their death; and 2) compensation for the death of the person.
Before a lawsuit can even be commenced, a representative has to be appointed for the deceased person. Papers have to be filed in Surrogate’s Court, requesting that a person (usually a family member) be appointed and have the power to proceed with the lawsuit and continue the case until it is completed. Since the person who has died cannot speak for themselves, the representative undertakes pursuing and continuing the litigation. Appointing a representative is the first necessary step to obtaining compensation. Upon submission of proper papers to the Surrogate’s Court, Letters Testamentary/Letters of Administration will be issued allowing for collecting medical records, police reports and other investigative materials and for the commencement of your lawsuit
In addition, before examining the claims for compensation, it has to be determined that negligence caused or contributed to the premature death. Assuming there was a cause of death due to negligence, the two areas of damages are as follows:
CONSCIOUS PAIN and SUFFERING
The first area of consideration for damages in a wrongful death case is the conscious pain and suffering of the injured person before death. The most important word is CONSCIOUS pain. That means that the person who died must have been aware of their pain before they died. A person who is not aware of any pain caused by the negligence of another before their death is not entitled to any compensation for pain and suffering. This may include people in a deep coma before death, someone who dies while under anesthesia during surgery or anyone who is not aware of any pain before they die. On the other hand, proof of pain can include moans, groans, crying and similar acts. Compensation for conscious pain and suffering only applies to the person who died, not to family members, relatives or friends who knew or loved the deceased person.
DEATH
The other area of consideration in a wrongful death case is the actual monetary loss that resulted from the death of the person. Under New York law, family members are entitled to compensation only for a “pecuniary loss” (money loss) due to the person’s death. Unfortunately, love, affection, grief, feelings of pain for the loss, are not compensable. Items that are compensable are actual lost earnings, medical bills, loss of services to a spouse and loss of parental guidance by minor children of the decedent up to the age of 21.
The individuals claiming a loss must come forth with proof, either through testimony or documents, which verifies the economic or pecuniary loss they sustained.
The law firm of Sanocki Newman & Turret, LLP has been successful in litigating personal injury and wrongful death cases involving negligence, medical malpractice, labor law, products liability and other wrongful acts. We will consult with and retain appropriate experts for your case, which may include medical doctors, nurses, engineers, accident reconstruction experts or economists. Call Sanocki Newman & Turret, LLP at 212-962-1190. Let us assist you in obtaining the compensation you deserve.