Wrongful death suits can stem from a variety of negligent actions such as:
- traffic accidents;
- medical malpractice;
- dangerous drugs; and
- defective product cases.
In many of these cases, insurance companies or the defendants themselves may attempt to deny or deflect blame for the accident and resulting fatality.
Being prepared for some of the common defenses that may be used can help protect this type of claim. A personal injury lawyer in Long Island who deals with wrongful death litigation can also provide guidance on how these defenses may be handled.
Impact of Victim’s Negligence in a Wrongful Death Suit
The first defense may pertain to any negligence on behalf of the deceased. Each state follows a specific type of negligence system, which can result in diminished damages or even dismissal of a case, when the deceased contributed to the accident that led to his or her death.
In New York, the pure comparative negligence system is followed. Under this law, damages can still be awarded when a victim was partially at fault, albeit reduced by the individual’s percentage of fault. Thus, the defendant may try to get the settlement significantly reduced by placing most of the blame on the deceased individual.
As an example, if the victim was killed in a motor vehicle accident and it was found that he or she was 80 percent at fault, this can drastically reduce the amount of compensation recoverable. The surviving family members may only receive 20 percent of the settlement in a wrongful death suit. However, they could end up receiving nothing if it can be shown the deceased was totally at fault for the accident.
Impact of Statute of Limitations in a Wrongful Death Claim
A second defense that may be used in wrongful death litigation is that the timeframe has run out for when a family can file a wrongful death claim.
In New York, the statute of limitations is two years, with some exceptions (such as discovering at a later date that the fatal injuries were from a tainted medication). Defendants may argue that the cause should have been discovered sooner, and thus the statute of limitations has expired.
By failing to file a claim on time, it could prevent any recovery of damages. This is why it’s important that families act quickly and seek legal advice when there is any question as to whether or not someone else was at fault for a family member’s death.
Impact of Evidence in a Wrongful Death Claim
A third defense is that there isn’t enough evidence to put fault on the other party. Having adequate proof is critical when pursuing wrongful death litigation. The type necessary will depend on the circumstances.
In a traffic accident adequate proof might include:
- the police report;
- statements from witnesses; and
- photographs.
In a medical malpractice wrongful death lawsuit, adequate proof might include:
- hospital records;
- laboratory results;
- a physician’s notes; and
- expert witness testimony.
Impact of Damages in a Wrongful Death Claim
Another defense that could be used is that the plaintiffs failed to establish the damages suffered. If a family is seeking compensation for medical expenses, a correct figure must be given regarding the extent of the expenses. The same is true for lost wages. There must be proper documentation that shows what the deceased was making and the contribution the deceased made to the household.
Benefits of a Personal Injury Lawyer in Long Island in a Wrongful Death Suit
These are just some of the defenses that could come up in a wrongful death suit. There may be others that the average person may not know to prepare for and likely wouldn’t know how to respond to in wrongful death litigation.
It can also be difficult to know what types of damages the surviving family is entitled to receive or what types of evidence will be required to build a strong case. With so much at stake, it might be in the family’s best interest to consult with a personal injury lawyer in Long Island at the law firm of Gacovino, Lake & Associates. The personal injury lawyers, Long Island, may be able to help those who are seeking compensation in a wrongful death suit.
