At least 250,000 deaths and as many as 400,000 or more deaths each year are caused by medical mistakes, according to statistics quoted in U.S. News and World Report. While some deaths are unavoidable, even with the best doctors and medical care, a death caused by a medical mistake that could have been prevented has an especially devastating effect on the victim’s family.
Sometimes, 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. In addition to seeking retribution for the defendant’s negligence, a wrongful death lawsuit enables the family to be compensated for the losses they suffered as a result of the death, including income and medical bills.
A wide variety of medical mistakes can cause an otherwise preventable death. These situations can happen to patients of all ages, from newborns to the elderly, and in any setting, including hospitals and nursing homes or other assisted living facilities. The death may occur in a setting unrelated to the original act of negligence, and there may be a time delay between the negligent action 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 types 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
- Emergency room errors
- Misdiagnosis or failure to diagnose a treatable disease
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.
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 Law
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 person who caused the victim’s death.
To correct 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 in 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 law, (link to the statute 740 ILCS 180/1: http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2059&ChapterID=57) the victim’s family or representative must prove that the death was caused by the by the “wrongful act, neglect or default” a person, company or corporation.
Statute of Limitations for Wrongful Death Claims (link to section above)
According to Illinois law, wrongful death lawsuits must be filed no longer than two years after the death of the individual; however, the court has the discretion to waive this time limit if there are special circumstances that caused the delay in filing the claim. In 2016, the Illinois Supreme Court ruled that the Discovery Rule could be used to allow a family member or representative to file a lawsuit after the two-year statute of limitations had expired in cases where the plaintiff “knew or should have known” about the circumstances the claim is based on. This means that the limitations period could begin when the negligence is discovered, regardless of when the act or series of actions actually occurred.
There are also exceptions to the time limit for violent and intentional acts where criminal charges may be involved.
Who can File a Wrongful Death Claim
In Illinois, it is 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 was 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 be entitled to file a wrongful death claim. Because the legal process is so complex, you need an experienced team of lawyers with the knowledge and compassion to guide you through every step of the process and make sure your family gets the compensation you deserve.
Call one of our wrongful death lawyers today for a free consultation.