Proving a Wrongful Death Case

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    August 15 2019

    A wrongful death is a legal term that refers to a claim that is filed after someone’s death is caused by the recklessness or negligence of another party.

    This type of claim is usually brought by the family members or estate of the deceased person to compensate them for their emotional and financial damages.

    Proving a Wrongful Death Case

    Elements of a Wrongful Death Claim

    There are four key elements that you must prove in a wrongful death claim.  These are: duty, breach of duty, causation, and damages.

    • Duty – To prevail on a wrongful death claim,  the surviving family member must show that the defendant owed a duty to the deceased person or “decedent.”  For example, medical professionals owe their patients a duty to provide a certain standard of care. Drivers owe other road users the duty to drive safely and obey traffic laws.
    • Breach of duty – Once you have established that a party owed a duty of care, you must show that the party breached that duty through their recklessness, carelessness, negligence, or intentional wrongdoing.
    • Causation – In addition to showing that the defendant breached a duty that he or she had toward the deceased victim, you must show that the breach of duty caused the victim’s death.
    • Damages – Once you have shown duty, breach, and causation, you must show how the death of the victim generated quantifiable damages.  This could include things such as the amount of money spent on medical bills, funeral and burial expenses, loss of income and potential earnings, loss of consortium, and the pain and suffering that the victim suffered before his or her death. 

    Proving all of these points in court through in a wrongful death suit requires a personal injury attorney to present strong evidence and expert witness testimony in support of your claim.

    The Burden of Proof

    A wrongful death suit is not a criminal case.  It is a civil case that is brought by one party against another party.  The district attorney is not involved.

    Because the case is being tried in civil court, the burden of proof is lower.  In a criminal case, the state must prove its case beyond a reasonable doubt. In a civil case, a plaintiff must only prove his or her case by a preponderance of the evidence.

    The preponderance of evidence standard is met if the surviving family members or the estate of the deceased show that there is greater than a 50% chance that, based on all the reasonable evidence shown, their claims are true and defendant did in fact do the wrong that caused the damage. 

    Types of Damages

    In a wrongful death claim, the personal representatives of the deceased person may be able to receive compensation for the following categories:

    • Medical bills – The costs of the deceased person’s medical expenses prior to his or her death.
    • Pain and suffering – The deceased person’s pain and suffering prior to his or her death.  These are (However, pain, suffering, and disfigurement are not recoverable damages in a wrongful death claim in the State of Nevada).
    • Funeral expenses and burial costs – A funeral home and burial service can be expensive.  These are all recoverable damages.
    • Loss of companionship – Survivors may sure for the loss of care, guidance, and nurturing that the deceased would have provided.
    • Loss of consortium – Historically, only the spouse of the deceased victim could bring a loss of consortium claim.  Traditionally, this type of claim was meant to compensate a spouse because the deceased victim is not longer able to provide love, affection, companionship, and sexual relations that they provided before their death.  However, now some states allow children, parents, and domestic partners to also file a claim. When making a loss of consortium claim, you should be aware that you may have to share intimate details of your life with the court.
    • Loss of income – You may be able to recover the deceased person’s expected income if they supported you.
    • Loss of inheritance – You may be able to recover loss of any inheritance that you will now not receive as a result of the deceased’s death.
    • Punitive damages – And exemplary or punitive damages, which are meant to punish particularly egregious conduct, that the responsible party would have had to pay if the decedent had lived.
    • Penalties – Any penalties that the responsible party would have had to pay if the decedent had lived.

    Common Causes of Wrongful Death

    Wrongful death claims often come from similar types of cases.  These types of cases include:

    How a Wrongful Death Attorney Can Help

    If you are thinking about filing a wrongful death lawsuit, we highly advise speaking with a personal injury lawyer or law firm that specializes in wrongful death as one of their practice areas.

    A wrongful death attorney will be able to: explain the legal process, help you retain any necessary expert witnesses, and actually file your wrongful death suit.  Your attorney will act as your representative to the insurance companies and the other party.

    Once you retain a personal injury lawyer who specializes in wrongful death law, he or she will examine police reports and medical records, interview witnesses, analyze physical evidence, and help you retain the proper expert witnesses to help you prove your case.

    Wrongful Death in the State of Nevada

    Every state has its own wrongful death laws.  Under Nevada law, “when the death of any person, whether or not a minor, is caused by the wrongful act or neglect of another, the heirs of the decedent and the personal representatives of the decedent may each maintain an action for damages against the person who caused the death.”  See NRS 41.185.

    Each state also has its own unique statute of limitations or time limit for filing a wrongful death claim.  In Nevada, the statute of limitations is two years.

    This means that a party must file a wrongful death claim within two years of the deceased victim’s death.  If you fail to file your claim within this period, the defendant is likely to file a motion to dismiss the case.  The court will likely grant that request.

    If it has almost been two years since your loved one passed away and someone else was responsible for causing their death, speak to a wrongful death attorney right away to find out how to preserve your legal rights.

    Talk to an experienced Wrongful Death Attorney to learn how to protect your legal rights.

    Experienced Las Vegas Wrongful Death Lawyers

    If you have lost a loved one due to someone else’s negligence, you should speak to an experienced wrongful death attorney who can offer you legal advice based upon the individual facts of your case.

    The Las Vegas Wrongful Death Attorneys at Anthem Injury Lawyers are ready to help you who will help you protect your rights and fight for you to receive maximum compensation.  Contact us today for a Free Initial Consultation.  

    Our law office is in Henderson, but we work with clients all over the Las Vegas Valley.

    To set up a free case evaluation contact us online, or at (702) 857-6000.

    Published by Anthony Golden

    Attorney Anthony B. Golden (“Tony”) is one of the founding partners of Anthem Injury Lawyers. Tony represents clients in all aspects of personal injury cases, from pre-litigation through jury trials and appeals. Tony has a proven track record of successfully representing clients in trials, arbitration, and appeals, as well as assisting clients in resolving high-value cases in mediation.

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