Medical mistakes account for more than 250,000 deaths a year in the U.S., according to a Johns Hopkins’ 2016 report. This makes medical malpractice the nation’s third leading cause of fatalities—right behind heart disease and cancer.
To put that in dollars and cents, payouts for medical malpractice exceeded $4 billion in 2018, according to the National Practitioner Database. The same data shows that New York was the top state for payouts at $685 million in 2018—up 11 percent from 2017—with an average individual award of $446,461.
Just because an individual has died from medical malpractice, doesn’t mean the claim against those responsible and any opportunity for financial award dies with them. There are two avenues of relief for surviving family members: a medical malpractice claim or a wrongful death action. Oftentimes, filing a wrongful death lawsuit makes the most sense.
What Is Medical Malpractice?
Medical malpractice is when a doctor or healthcare professional acts in a way that hurts their patient—or when they fail to act at all—with disastrous results. Negligence can cover virtually any facet of the doctor’s role. This includes:
- Errors like unnecessary or wrong-site surgery
- Disregarding or not recording a patient’s history
- Improper medication or treatment prescribed and/or administered
- Failure to order necessary diagnostic tests
- Discharging a patient before they are ready
The most prevalent malpractice complaint is misdiagnosis, which makes up nearly 32 percent of all medical malpractice claims, followed by surgical errors at 30 percent, and treatment mistakes at 25 percent. The death of a patient was a factor in 32 percent of all paid claims.
Elements of Medical Malpractice
Proving medical malpractice is not an easy task; more is needed to win a case than merely implicating a hospital or health-care provider. It takes the following three elements to constitute medical malpractice:
- Unorthodox Standard of Care: The doctor, hospital, or medical staff member in question fails to follow an acceptable standard of medical care for the patient’s condition. However, showing a failure to follow a recognized standard of care is a legal dead-end if not combined with the following two elements.
- Negligence-related Injury: The health-care provider must have acted with negligence resulting in injury. A tragic outcome alone does not prove malpractice nor does simple negligence. The negligence must have caused harm to the patient.
- Sizable Damages: In the case of wrongful death, there’s no doubt the damage is substantial enough to warrant a medical malpractice complaint. But other losses can be substantial. These include cases with severe consequences like a disability, loss of a job, unsurmountable medical bills, or extreme pain resulting from the malpractice.
The deadline for filing a malpractice claim in civil court, also known as statute of limitations, is one and a half years after the act, omission, or neglect that caused the injury. In some cases, the statute will only be calculated from the time of discovery of the injury, such as in an object left in a patient’s body during surgery and only discovered some time thereafter.
What Is Wrongful Death?
If medical malpractice has claimed the life of a loved one, justice and compensation for emotional pain and suffering may be sought through a wrongful death suit. This is a civil action against anyone who can be held accountable for the fatality.
Wrongful death is an umbrella term that covers any negligent or intentional act that takes a life. Common examples of accidents that lead to wrongful death cases include:
- Car crashes
- Workplace and industrial mishaps
- Homicide and police shootings
- Defective products
- Medical malpractice.
All can be brought to court for justice and compensation for the families suffering the loss of life.
Elements of Wrongful Death Action
A wrongful death claim must meet certain criteria, which vary from state to state. Here are the elements of a wrongful death lawsuit in New York:
- There must be a fatality. Medical malpractice can be alleged for injury, disability, and other non-terminal grounds, but in a wrongful death suit, there must be a decedent.
- The death must be the result of negligence or wrongdoing.
- The injury could have resulted in a medical malpractice claim if the victim had lived.
- There are surviving family members who have suffered damages without the deceased.
Filing a Wrongful Death Claim
In New York, the action must be filed by the personal representative of the deceased’s estate, which can include a family member. Family members can then benefit from any award based on their losses. A representative holds the funds in trust for the relatives.
The statute of limitations for filing a wrongful death action with the court is two years from the person’s death. No exceptions are made for a minor child who might want to sue. In those cases, a guardian must act on their behalf within the two-year period.
In a wrongful death case that drew national attention, the families of Nicole Brown Simpson and Ron Goldman won $33.5 million after a jury held O.J. Simpson responsible for their deaths. Although a criminal trial failed to convict O.J. Simpson, the families battled successfully in civil court.
The key difference, and perhaps why O.J. won in criminal court but lost the $33.5 million, is that civil court adopts a less rigid standard of evidence. Matters do not have to be decided “beyond a reasonable doubt” as they do in criminal court.
Civil court makes its decisions based on a “preponderance of the evidence.” This means the party filing the claim must convince a fact finder that there’s a greater than 50 percent chance their claim is true, says the Legal Information Institute of Cornell Law School.
Weighing the Options
Since medical malpractice can result in negligence that claims lives, it has a close relationship with wrongful death. Technically, the individual suing the health-care practitioner or hospital after a fatality can file both a medical malpractice and a wrongful death action.
Whether it makes sense to do so, however, is a matter best left in the hands of a skilled attorney. Double actions will likely mean greater litigation costs, including that of expert witnesses, and many states will cap (or limit) award amounts.
New York is one of the few states that has no cap on monetary awards for pain and suffering damages, but family members are not permitted to collect for their own pain and suffering, such as mental anguish, in a wrongful death action. New York does not cap how much can be claimed in a medical malpractice lawsuit.
Under New York law, if there was a medical malpractice suit started prior to death, the decedent’s representative or family members can expand the complaint to include wrongful death.
Damages in a Wrongful Death Claim
In New York, a wrongful death claim might compensate for any of the following:
- Medical and health-care costs related to the injury and demise
- Loss of parenting to any surviving children
- Loss of the children’s future inheritance
- Pain and suffering experienced by the deceased
- 9 percent interest on the award figured from the time of death
Wrongful Death vs. Medical Malpractice Settlement Amounts
If a family or estate representative is filing a medical malpractice claim in civil court on behalf of a deceased loved one, they can seek to recover damages stretching from the date of the malpractice to their passing. They also can sue for the financial loss resulting from this death to recover wages and support.
Wrongful death awards, in many states, are based on pecuniary or financial injury. That means the jury is looking at what the decedent would have contributed by way of support, services, and future inheritance, as well as the cost of funeral and health-care expenses. The jury considers the age of the decedent, as well as their calculated life expectancy, health, conduct, earning potential, and more. The person’s record of financial stability—or lack thereof—also could boost or reduce the award value.
Although rare, punitive damages are allowed in some states to punish those committing malicious or severe wrongdoing. It’s also possible to take survival action for personal injury. This means suing for injury that the decedent experienced, including the loss of consciousness, severe pain, and apprehension of impending death.
Free Consultation with a Medical Malpractice or Wrongful Death Lawyer
If you or a loved one is a victim of medical malpractice, or a wrongful death occurred as a result of medical negligence, the lawyers at Sobo & Sobo are ready to help take some weight off your shoulders during these trying times.
For over 50 years, Sobo & Sobo has helped loved ones and their families recover emotionally, physically and financially in times of tragedy. Call 855-468-7626 for a free consultation, and let our team know how they can help you navigate the legal process and earn full compensation for your suffering.