How Do I File a Wrongful Death Medical Malpractice Suit?June 16, 2022
Losing a family member during a medical procedure is a devastating loss. It can be even more upsetting when you learn that death was the result of medical malpractice and your loved one may not have died otherwise. There is no way to put into words the emotional toil a person undergoes when that happens.
However, it is not just the emotion of losing a loved one that families must endure. There are also financial implications of the loss of a family member. The person who died could have contributed to the family, and with them gone, the family could be left with no way to pay their bills. The loved one could have been a support person who helped maintain the house or watch the children.
Those impacts can be compensated by filing a claim against the doctor, the hospital, and anyone else who might have placed a role in the death. If you are unsure of your legal options, and experienced medical malpractice lawyer can help.
Who Can File a Medical Malpractice Case?
Essential medical malpractice describes any medical action that falls below the accepted medical standard of care. In addition, the substandard level of care that the patient received must result in a certain level of harm. In other words, if a mistake is made, but the patient is not hurt by it, there is no case.
Unsurprisingly, the cases involving this area can get complicated, although Maryland law states that there are two groups of individuals who are eligible to file a wrongful death medical malpractice claim. Those include:
- Primary beneficiary: These are a deceased person’s immediate family: the spouse, child, or parent.
- Secondary beneficiary: This category only occurs when there are no primary beneficiaries. This wide-ranging category includes anyone related to the deceased by blood or marriage. However, that person must be substantially dependent on the deceased individual.
In addition, the person who files the claim must be the executor of the deceased’s will. If there is no such individual, the person seeking to file the claim must be appointed either by agreement or trial via the probate court. Prior to being appointed, this individual must first notify all interested parties including family members. If no one objects, the approval will go through without incident. A hearing will be conducted if there are objections to the person.
When it comes to Maryland wrongful death cases, there are two main types in terms of what they are seeking and who can file them. They are as follows:
- Wrongful death action: This is a claim filed by an individual who is seeking to obtain financial compensation for the monetary loss and emotional suffering they have endured because of the death. Primary beneficiaries are entitled to file this type of claim.
- Survival action: In this action, a claim is filed on behalf of the estate in a move to recover the damages the deceased endured because of the incident. Secondary beneficiaries can file this claim only if there are no primary beneficiaries.
If you are unsure what legal options are available to you or your legal status to file a claim, a medical malpractice lawyer will help you determine how to proceed.
How Do I File My Claim Once I Am Appointed?
Before you take any legal steps toward filing a claim, you must first be sure that you have the medical opinion to back up your claim. To that end, you will need a medical doctor who will give an affidavit of merit on your behalf verifying your claim. This statement must explain that the doctor in question clearly violated the applicable standard of care and in so doing caused harm to the patient.
Although it may be easy to find a doctor who will provide the testimony you are looking for at the right price, the courts have made efforts to minimize the impact of hiring so-called hired guns. To that end, you may not use a doctor who makes more than 20 percent of their overall income on testimony in personal injury claims.
The biggest hurdle not just in a wrongful death case, but a medical malpractice one, is to prove negligence. To do that, your lawyer will have to demonstrate four actions:
- Duty of care: Your lawyer must demonstrate that the doctor or medical staff had an inherent responsibility to keep the deceased person safe and not harm them.
- Breach of duty: Your side must then present evidence that demonstrates that the doctor breached their duty to guarantee that safety of their patient through some type of action, including failing to pay attention or ignoring certain medical procedures.
- Causation: Evidence must demonstrate that as a direct result of the doctor’s actions, the individual in question sustained harm.
- Plaintiff suffered actual damages: This is where your side must prove the harm that was caused, both emotional and financial, owing to the death of the patient.
The primary element of all medical malpractice cases is the medical standard of care. This standard is defined as the type of care that an ordinary, prudent, health care professional, who had the same training as any other doctor, would provide under similar circumstances in the same community.
The best way to prove this standard is by bringing in a doctor who has training and experience that is similar to the doctor who is the subject of the suit. They can then provide testimony stating how the level of care the deceased received fell below the standard level of care and then how that caused the harm that resulted in the patient’s death.
As with all lawsuits, there is a limit on when a party can file a wrongful death medical malpractice suit. Although there are some details about the statute of limitations that can get confusing, in general a person has five years from the day the injury occurred or three years of the date when the injury was discoverable to file a case. For minors, the clock does not start until they turn 18. If you are unsure about when your statute of limitations runs out, speak with a medical malpractice lawyer who can help determine how much time you have. If you fail to file in the allotted time, your case could be dismissed.
What Damages Can I Seek in a Wrongful Death Medical Malpractice Claim?
Given the fact that there are two types of suits that a person can file in these situations, the damages they can seek will differ as well. In a wrongful death action, which can be filed by the primary beneficiaries, they can seek the following:
- Medical bills: This will include all medical expenses associated with the medical action that caused the death or medical treatment that attempted to treat the injuries caused by the initial malpractice.
- Loss of income: A family can seek the income that they lost because the individual was unable to go to work and draw a salary. However, the family cannot seek any future earnings.
- Loss of companionship: A spouse can file for this non-economic damage in which they seek financial compensation for the emotional and physical loss of their partner.
- Loss of advice and guidance: This is a non-economic damage that a child can file for, as their mother and father are gone and will not be around anymore to provide life advice.
There are also certain expenses that secondary beneficiaries can seek if they are filing a survival action. Those include:
- Funeral expenses: The estate can seek compensation to pay for the funeral that it was not anticipating.
- Medical costs: The estate is also entitled to seek compensation for any medical costs that occurred from the deceased’s medical condition and the negligence conducted by the medical staff.
- Pain and suffering: This would be filed on behalf of the deceased and be compensation for the emotional turmoil they suffered from the medical malpractice.
Maryland places a cap on the total amount of non-economic damages an individual can seek in these circumstances. The amount changes depending on the year the incident took place and the number of people seeking a claim. Speak with a seasoned medical malpractice lawyer who will advise you on the proper amount for which you and your family may be entitled.
Baltimore Medical Malpractice Lawyers at LeViness, Tolzman & Hamilton Steer Clients through the Complexities of a Wrongful Death Case
If you have lost a loved one or close family member because of the negligence of a doctor or a hospital, it can be emotionally devastating. It can also be a legal quagmire. Your family has enough to deal with without having to jump through legal hoops. The Baltimore medical malpractice lawyers at LeViness, Tolzman & Hamilton can manage your case and see that your loved one receives justice. Call us today at 800-547-4LAW (4529) or contact us online to schedule a free consultation.
We have offices in Baltimore, Glen Burnie, and Prince George’s County, allowing us to represent clients in Maryland, including those in Anne Arundel County, Carroll County, Harford County, Howard County, Montgomery County, Prince George’s County, Queen Anne’s County, Maryland’s Western Counties, Southern Maryland and the Eastern Shore, as well as the communities of Catonsville, Essex, Halethorpe, Middle River, Rosedale, Gwynn Oak, Brooklandville, Dundalk, Pikesville, Parkville, Nottingham, Windsor Mill, Lutherville, Timonium, Sparrows Point, Ridgewood, and Elkridge.