Losing a loved one is a difficult circumstance for any family to face. The stress surrounding this tragic situation can be heightened in the event of a wrongful death. As you cope with this frustrating loss, our team of Bergen County wrongful death attorneys at Aretsky Law Group, P.C. can help you navigate the legal complexities surrounding a wrongful death case.
In the State of New Jersey, a wrongful death case may be pursued if the individual’s death is caused by the “wrongful act, neglect or default of another”. In this situation, the deceased victim is referred to as the “decedent” in the courts. At Aretsky Law Group, P.C., our Bergen County wrongful death lawyers assist families who have lost a relative to receive the maximum amount of money from the responsible party.
According to “Section I: Wrongful Death and Survival Actions in New Jersey” of the New Jersey Wrongful Death Act, “When the death of a person is caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the person injured to maintain an action for damages resulting from the injury, the person who would have been liable in damages for the injury if death had not ensued shall be liable in an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances amounting in law to a crime.”
When deciding whether or not a wrongful death lawsuit is the appropriate legal action to take in this situation, the family should consider a simple analogy. It is considered appropriate for the decedent’s family to pursue a wrongful death lawsuit if the decedent could have pursued a personal injury lawsuit had they survived.Examples of Wrongful Death Lawsuits
While wrongful death lawsuits can arise from many situations, the most common causes of wrongful death in the United States include car accidents, medical malpractice, medications, and work accidents.
- Car accidents are some of the leading causes of wrongful death claims. According to the Insurance Institute for Highway Safety (IIHS), over 35,000 people lose their lives in highway accidents in the United States annually. These accidents are generally categorized to also include car, bike, pedestrian, motorcycle, and boating accidents.
- Medical malpractice is another leading cause of wrongful death cases. Unfortunately, while we typically expect hospitals and doctors to treat us with optimal care, this is not always the case. There are a plethora of errors that medical professionals and institutions make regularly, including issues with surgical techniques, anesthesia, birth injuries, and bedsores. In fact, it is estimated that there have been over 300,000 premature deaths attributed to medical malpractice in the United States each year.
- Medication errors are an additional leading cause of premature deaths in the United States. Most commonly, medication errors include dosage errors, issues with interactions between different drugs, and misdiagnosed treatments. Considering that nearly 4 billion drugs are prescribed in the United States annually, there are bound to be accidents. Alarmingly, the majority of drugs prescribed in the United States include analgesics, antidiabetics, and antihyperlipidemics, which can create health concerns at improper dosages.
The regulatory environment surrounding the pharmaceutical industry also contributes to medication errors. For example, pharmaceutical companies are incentivized to rapidly develop drugs that treat new conditions, though the pace of this innovation often exceeds the sufficient testing that would ensure greater effectiveness and patient safety.
- Work accidents are another leading cause of wrongful deaths in the United States. According to data from the Bureau of Labor Statistics (BLS), nearly 4,836 people were killed while working in the United States in the year 2015. Among these wrongful deaths, the majority are attributed to transportation accidents and falls (a combined 59% of all wrongful deaths stemming from work accidents).
As with other tort and negligence cases, assessing the legal liability of the accused party can be accomplished by evaluating four critical elements of a wrongful death case. These elements are duty, breach of duty, causation, and damages.
- Duty is the term used to acknowledge one party’s legal or contractual obligation to another party. In the case of a wrongful death case, the accused party owes a legal duty of care to the decedent to “adhere to a standard of reasonable care while performing any acts that could reasonably harm others”.
For example, in the case of an automobile hit-and-run, the driver of the vehicle owes a legal duty to operate their vehicle in compliance with local traffic and speed regulations and to remain at the scene of the collision in the event of a hit-and-run event.
- The Breach of Duty occurs when one party breaches their duty of care to the other party. In this example, the driver of the vehicle would have breached their duty of care to the decedent by speeding and neglecting to remain on scene after the collision.
- The third element required in a wrongful death case is Causation. Essentially, the court must be able to reasonably infer that the accused party’s breach of duty directly caused the death of the other party. For example, in the case of the reckless hit-and-run driver, it must be reasonably assumed that the decedent would not have died had the driver not collided into them at high speeds. This is legally defined as “proximate cause”.
The final element of a negligence case is Damages. According to the New Jersey Wrongful Death Act, only pecuniary (financial) damages may be recovered in the event of a wrongful death claim. These damages may include loss of income, loss of services, and reasonable funeral and medical expenses. According to the New Jersey Wrongful Death Act, the “purpose of the award is the replacement of services that the decedent would have rendered and nothing more”. Emotional losses are only considered in the event that somebody witnessed the negligent death occur. Notably, this claim would have to be filed as a separate lawsuit.
- In order to calculate loss of income a court-appointed economist will deduce the potential income that the decedent could have generated over the remainder of the lifetime, and will subtract variables such as income taxes and personal maintenance expenses. The resulting figure will be an estimate of the amount of money that the decedent could have reasonably contributed to their survivors.
- Next, loss of services is calculated by estimating the monetary value of services that they decedent could have provided had they not died. These services may include those that directly benefit the decedent’s survivors, such as child-rearing, care-taking, business advisory, etc.
- Finally, funeral expenses are deduced by evaluating expense receipts.
The total compensation for pecuniary damages in a wrongful death case varies from state to state. The median recovery has hovered around $250,000 nationally, while the average has exceeded $1,000,000. Notably, 20% of plaintiffs pursuing wrongful death claims in the United States have received over $1,000,000 in recoveries.Conditions for Filing a Wrongful Death Claim
There are several eligibility requirements that must be met before filing a wrongful death claim on behalf of a decedent.
- Foremost, the claim must be brought forward in the name of one of the decedent’s survivors.
- Secondly, the claim must be brought by an individual who is entitled to an inheritance from the decedent.
- The individual must demonstrate “actual dependency” on the decedent.
Most often, this representative is the surviving spouse and children of the decedent, but in many cases is also the decedent’s surviving parents, or surviving siblings or nieces/nephews.
Often, qualifications for dependency is at the discretion of the courts. For example, in Eyoma v. Falco, 247 NJ Super. 435 (1991), the decedent was survived by his children and mother. While the mother claimed dependency on the decedent, the court did not award damages to her, since surviving parents are only granted dependency status if there is no surviving children or spouse.
There is a notable New Jersey Supreme Court case on this matter, Julie Gangemi v. National Health Laboratories. In the case, Gangemi (plaintiff) attempts to bring a wrongful death claim against National Health Laboratories for the death of her adult sister, who perished after a failed medical test. In the case, Gangemi claims dependency on her sister, since her sister had no surviving children or spouse, and offered the plaintiff “invaluable” career advice. In this case, it was difficult for Gangemi to convince the judge that she was entitled to damages, considering there must be pecuniary dependency on the decedent in the New Jersey Wrongful Death Act.
The timing of a wrongful death claim is also relevant in the state of New Jersey. Most commonly, there is typically a two-year statute of limitations on wrongful death claims. However, given the often tedious nature of a wrongful death lawsuit, it is wise to consider taking legal action with a Bergen County wrongful death attorney as soon as possible.
At Aretsky Law Group P.C., we understand how difficult it can be for your family to deal with the death of a loved one, and we hope to provide legal guidance during this upsetting and frustrating time. Contact us today at 800-537-4154 to schedule a FREE consultation at one of our convenient locations by appointment only located throughout New Jersey.