The death of a loved one, no matter what the circumstances, is perhaps the most difficult event we will ever experience. Nothing we can do, and nothing we say, can ever bring the person back, or ease your grief. When wrongful death occurs, leading Oregon wrongful death lawyer Aaron DeShaw believes the civil justice system is a powerful tool that not only provides justice for individuals who have had someone they love taken from their life, but also helps change public policy to prevent others from being hurt. Examples of wrongful death cases are:
- Wrongful Death caused by a drunk, drugged, or careless driver;
- Wrongful Death caused by the manufacture of an unsafe, defective or dangerous product; or
- Wrongful Death caused by a physician who fails to diagnose a treatable disease or does something grossly wrong leading to someone’s death (also known as “medical malpractice” cases).
While Dr. DeShaw does believe that some malpractice suits do not have sufficient merits (and as a result declines at least 200 malpractice cases for everyone he accepts) he also recognizes that medical malpractice is one of the leading killers of people in America, and that only the threat of lawsuits minimizes the risk to the American public.
What you need to know About Wrongful Death
Are your lawyers up to the task if the wrongful death is particularly horrific?
Yes. As a former doctor, Dr. DeShaw did a year of gross anatomy with human bodies. He has faced severe injury cases for many years including deaths, quadriplegia and severe brain injuries involving extended comas and brain surgeries. During his time working in Europe, he worked in Northern Ireland during the 30+ year conflict treating members of the RUC military force, and faced riot situations. He is the lawyer called by the Brain Injury Association of Oregon when a family is in need of guidance and counseling during severe brain injuries to a family member, and is willing to go into the hospital to see catastrophically injured people. We have handled particularly gruesome wrongful death cases including those of small children. It is not an easy part of our job, but as a parent of small children, Dr. DeShaw is most concerned with enforcing the community’s rules about safety so that unnecessary deaths are prevented.
Who can bring a wrongful death suit?
Wrongful death laws vary from state to state, but in general they define who may sue for wrongful death and what, if any, limits may be applied to an award of damages. The individuals entitled to sue for wrongful death are generally named in the laws of the state. Many states provide for recovery by a surviving spouse, next of kin, or children. Some states permit a surviving spouse to bring an action. Ordinarily, children may bring suit for the wrongful death of their parents, and parents may sue for the wrongful death of their children. In some states, only minor children are allowed to sue for the death of a parent. Contact us if you think you may have a case, but are not sure if you can file the suit in your own name.
What if a person dies before bringing a personal injury lawsuit?
It depends on whether a person dies as a result of the injuries or from unrelated causes. If a person injured in an accident subsequently dies because of those injuries, that person’s heirs may recover money through a lawsuit. Every state has a law permitting an action when someone causes the wrongful death of another. If a person with a personal injury claim dies from unrelated causes, the claim survives in most cases and may be brought by the executor or personal representative of the deceased person’s estate.
What if an unborn fetus dies?
Many states require that a child be born alive in order for its death to be the subject of a wrongful death action, so the death of a fetus might not be actionable. An attorney can tell you what the precise law is in your state.
When someone dies, what is the difference between the civil and criminal cases that can be brought regarding the death?
A criminal case arises when the government seeks to punish an individual for an act that has been classified as a crime. A civil case, on the other hand, usually has to do with a dispute over the rights and duties that individuals and organizations legally owe to each other. The burden of proof is higher in a criminal case, and the penalty imposed is a criminal sanction such as imprisonment. In a civil case, the defendant will not face imprisonment, but will typically have a monetary judgment entered against him/her. In some cases large verdicts have resulted in civil wrongful death cases, even in cases where a criminal case is not won. The OJ Simpson case is an excellent example of this. The jury in the criminal case did not believe OJ was guilty “beyond a reasonable doubt” as required to criminally convict him of murder. But, in the civil trial, the verdict against OJ for the murders was $33.5 million because the jury believed that “more likely than not” he did kill Nicole Brown and Ronald Goldman. So, wrongful death cases can arise from intentional acts such as murder. But, most often they result from reckless criminal conduct such as a DUI, driving under the influence of drugs, or driving recklessly.
Are punitive damages recoverable in wrongful death actions?
In most states, a plaintiff may not recover punitive damages in a wrongful death action. There are some states, however, that do have specific statues that permit recovery of punitive damages.
Are all state laws the same regarding wrongful deaths?
No, there are many differences among different state wrongful death laws. Determining the state in which you can (and should) bring a wrongful death action is a very important decision, because some states do not allow certain types of damage awards and/or may have different statutes of limitation that establish the timeframe within which you must file suit.
Can I bring a wrongful death action if the deceased never held a job?
Yes, even if the decedent never held a job, he/she may have contributed in some other way to the family. A good example of such a case is an action for the wrongful death of a stay-at-home husband or wife who contributes home services, guidance and nurturing to the family. These contributions are quantifiable as “pecuniary losses” in a wrongful death action. Stay at home parents are generally the foundation of family life, and their loss often damages the family members more than the loss of the main financial provider.
Can someone sue for the pain and suffering of a decedent?
Yes, in addition to the wrongful death, a decedent’s family may recover damages for the pain and suffering that the decedent endured prior to death.
Can I bring a wrongful death action based on the death of a child or an elderly person?
Yes, you can recover damages in a wrongful death cause of action for the death of either a child or an elderly person. For a variety of reasons, however, the damage awards for both classes of decedent are usually less than a person in their prime earning years, mainly because the economic losses of the person are less, or more difficult to prove.
What if I want to hire you for a wrongful death case, and I already have another lawyer?
Ask your lawyer to hire our firm as co-counsel in the case. In many states, your present lawyer can be paid a referral fee and allow us to take over the case completely. Or, in some cases, your lawyer can remain involved and continue to work on the case with our firm.
What if I want you to work on my case and I’m in another state?
Dr. Aaron DeShaw Esq can make a decision about whether he would want to accept the case and associate with a lawyer in your state, or simply find you an excellent lawyer in your state. Dr. DeShaw is well connected with high quality lawyers nationally, and can provide the names of quality lawyers in many states if your case could be handled without our level of expertise. In the event our expertise would be helpful, and the loss is substantial, we can hire co-counsel in your state and work on the case together as long as this is acceptable in your state.