When a loved one is seriously ill or hospitalized, the family trusts the patient’s medical team to provide the highest level of care. Even with the best doctors and medical facilities, some deaths are unavoidable, and families are left to mourn and cope with their loss. When a family believes that a death was caused by a medical mistake that could have been prevented, the loss is magnified and compounded to a significant degree. An article in U.S. News and World Report estimated that at least 250,000 deaths to as many as 400,000 or more deaths each year are caused by medical mistakes.
When this happens, it may be appropriate for the family to bring a wrongful death lawsuit on behalf of their loved one against the doctor, hospital or other medical provider(s) responsible for the negligent actions that caused the death. A wrongful death lawsuit enables the family to be compensated for the losses they suffered as a result of the death.
According to previous “common law,” wrongful death legal claims did not exist. The courts reasoned that any legal claim “died” with the victim, which prevented surviving family members from claiming damages from the parties who caused the victim’s death.
To address this injustice, individual states passed their own “wrongful death statutes.” Today, every state has some form of wrongful death statute, which differs from state to state as to who can bring a wrongful death lawsuit and what damages may be recovered. In most states, when someone’s death is caused by another’s neglect or wrongful act, the person or entity that caused the death may be held liable for a wrongful death action. Generally, this type of lawsuit may be brought if the decedent could have sued another party for personal injuries, had he or she not died.
According to Illinois Wrongful Death Act, creates a cause of action for a deceased’s surviving spouse and next-of-kin.
Illinois Statute of Limitations for Wrongful Death Claims
Under Illinois Law, the statute of limitations for wrongful death lawsuits is generally two years. That means the representative of a deceased person has two years after the date of death to file a lawsuit, or they will forever be barred from doing so. There are certain exceptions to the two-year statute of limitations. For example, the Discovery Rule found in Section 13-212(a) of the Illinois code of civil procedure (735 ILCS 5/13-212(a)) provides that within the four year statute of repose, any claim for malpractice against a health care provider must be filed within ten years of the date the representative knew, or through the exercise of reasonable diligence should have known, of the existence of the death for which damages are sought. There are also exceptions to the two-year statute of limitations (and four-year statute of repose) for causes of actions for minors.
There are also exceptions to the time limit for violent and intentional acts where criminal charges may be involved.
Illinois Law and Wrongful Death Damages
Damages in an Illinois wrongful death case are paid “for the exclusive benefit of the surviving spouse and next of kin of [the] deceased person.” The law gives a jury permission to award whatever damages are deemed to be “fair and just compensation with respect to the losses resulting from the death.” Damages are typically awarded to the surviving spouse or next of kin. If the victim was a child, damages are usually awarded to the parents and siblings. Damages are awarded according to the court’s assessment of the situation and the individuals involved.
Current Illinois law places no caps on damages for wrongful death cases. While the state’s wrongful death laws used to include caps on damages (a $500,000 cap for verdicts against doctors and a $1 million cap on verdicts against hospitals), the laws governing those caps were overturned in 2010.
Damages can include any or all of the following:
- Funeral expenses and burial services, including clergy fees
- Medical expenses for the cost of the victim’s care from the time the negligence occurred until death
- Pain and suffering of the deceased person prior to death
- Lost income, including the deceased’s financial contribution to the family in addition to any benefits, such as health insurance for the family, that are lost as a result of the individual’s death.
- Loss of consortium, which can include loss of sexual relations and companionship.
- Punitive damages are awarded to punish the party responsible for the negligence that caused the death. Sometimes they are intended to serve as an example or a deterrent to others who might commit similar negligent acts.
Wrongful Death Resulting from Medical Malpractice
There are numerous kinds of medical mistakes that can cause an otherwise preventable death. This can happen to patients of all ages, from newborns to the elderly. Death resulting from negligence can occur in a hospital, a nursing home or other assisted living facility or in a setting unrelated to the original act(s) of negligence. There may be a time delay between the negligent action(s) and the fatal consequences. In these cases, a specific cause-and-effect is not always apparent without further investigation and examination of medical records dating back months or years.
Here are some of the numerous kinds of medical mistakes or negligence that can result in wrongful death:
- Mistakes during surgery
- Anesthesia errors
- Birth Injuries
- Medication errors
- Incorrect prescriptions, drugs and/or dosages
- Pharmacy errors
- Nursing home abuse and neglect
- Medication incorrectly prescribed or administered
- Emergency room errors
- Misdiagnosis or failure to diagnose a treatable disease
Who can File a Wrongful Death Claim
In Illinois, the personal representative of the deceased person’s estate who files the wrongful death claim. In most cases, this is the spouse or adult child of the deceased. If it is a minor child who died, the wrongful death claim may be filed by the child’s parent(s). If no personal representative is appointed or designated in the estate plan, one may be appointed by the court.
Of course, there is no amount of money that can replace the loss of a beloved family member, but grief should not be compounded by mounting medical bills, funeral and burial expenses and other costs the deceased’s income used to cover. Receiving compensation for these and other expenses, including pain and suffering, can go a long way toward helping a family heal from their devastating loss.
If you have lost a loved one due to the negligence of a doctor, nurse, hospital or other medical professional or facility, you may have a wrongful death claim.
Contact of our wrongful death lawyers today for a free consultation.