medical malpractice deathWhen a patient dies due to errors by a physician or healthcare provider, family members may have the right to bring suit against the responsible parties and seek damages through a wrongful death claim or survivor action. According to the Institute of Medicine, it is estimated that 44,000 to 98,000 people die in hospitals each year due to preventable medical errors. Unfortunately, there is a lot of complexity surrounding such types of deaths, and not all deaths in a healthcare setting qualify for damages under a malpractice claim. If you are seeking civil suit, you will need to understand the factors of your case, and whether or not a survivor action or wrongful death claim is the right option for you.

Wrongful Death Claims

A wrongful death claim does focus on medical negligence, but to file a wrongful death claim, surviving family members of the deceased patient will need to:

  1. Show that the patient died because of a medical error that was preventable.
  2. Prove that the patient had close family members who were affected by the death.
  3. Show that family members suffered compensable losses.
  4. Prove that the physician or hospital is responsible for the patient’s medical care, and that those responsible should compensate the family members for all losses that have stemmed from the death.

In a wrongful death action, the family is not suing for harm that was inflicted on the deceased. Instead, surviving family members are suing for damages caused to them as a result of their loved one’s death. In a wrongful death, damages can include:

  • Loss of love and/or emotional support
  • Loss of financial support
  • Loss of companionship (typically limited to spouses only)
  • Compensation for pre-death expenses
  • Costs of funeral expenses
  • Medical care costs

Survivor Actions

Survivor claims are also based on negligence, and filed by family members of the deceased. But, unlike a wrongful death claim, family members are arguing that:

  1. The patient died of a preventable medical error.
  2. The medical error led to pain and suffering prior to the patient’s death.
  3. If the patient did survive, they would have sued the physician or hospital to recover for their harm.
  4. The physician or responsible party should not escape liability because of the death.
  5. The defendant should pay damages to the deceased’s estate.

Survivor claims are only available after the patient has died, but is based on the theory that the patient was harmed in some way by his or her medical professional. In essence, family members are doing what their loved one would have done if he or she had survived – hence the term “survivor action.”

What About a Loss of Chance?

There is a third complex legal factor that is used in wrongful death claims. As a general rule in medical malpractice, a patient can only sue the healthcare provider if the mistake caused him or her harm. In cases where there is a loss of chance – meaning that an error reduced a patient’s likelihood of survival – the issue of malpractice becomes more complex. For example, if a patient has a tumor in their brain, and  because it was not diagnosed or treated properly, the patient will now die within a few weeks. Had he or she received treatment, the patient could have survived another five to 10 years. In this instance, the patient has suffered a loss of chance, and the physician should be held accountable for reducing the lifespan or chances for survival.

To Fully Understand Your Malpractice Options, Contact a Medical Malpractice Attorney

While no amount of compensation can cover the loss of a loved one, when you lose someone whom you love because of preventable medical errors, you need to hold the responsible parties accountable for their negligence. The malpractice attorneys at Berkowitz and Hanna LLC will work as your advocates to not only hold negligent healthcare professionals accountable, but to ensure that you and surviving family members are adequately compensated for your losses. Contact Berkowitz and Hanna LLC today to schedule a no-obligation case evaluation. Contact us online to get started.