Archive for February, 2009


February 16, 2009

In general, medical malpractice that results in the death of the plaintiff may give rise to a wrongful death action against a medical provider.  Since legal issues are never simple, there are exceptions, limits, and other ameliorating factors that must be considered.

Previously, in common law, the death of a plaintiff due to defendant’s negligence extinguished the plaintiff’s tort action with the absurd reasoning that he had lost his right to recover by virtue of his departure from life.  This led to the reality of it being cheaper to kill the defendant than to injure him!

Fortunately, wiser heads prevailed as the law evolved and states began to pass survival statutes to modify the common law rule.  Most states now have wrongful death statutes which allow a certain group of individuals (usually the decedent’s spouse and children, and sometimes parents if there are no spouse and children), to recover for the loss sustained by virtue of decedent’s death.  Often, it is the decedent’s executor or administrator who brings the action, but the proceeds go directly to the beneficiaries, with distribution determined by the court.  The elements of damages in a wrongful death action are generally similar to those allowed in actions by a spouse or parent for injuries NOT leading to death.  Thus, beneficiaries can recover for loss of economic support that would have been received had the death not occurred.

On the defense side, defendants may assert pretty much any defense that could have been asserted had the plaintiff survived. Therefore, the decedent’s contributory negligence (assuming the applicability of such defense in the jurisdiction), and other mitigating factors may bar an action for wrongful death by the survivors.