When a person dies unexpectedly and leaves behind family members, many challenges may present themselves. If that person died due to the negligence of someone else, then the death may be considered a wrongful death. In the case of a wrongful death, a surviving family member may seek compensation for economic losses, including future economic damages, in New York State.

Because negligence must be involved in the death for one to sue for money, the person at fault must have had a duty to be careful in the actions that resulted in the death. Therefore, if a car accident resulted in a death and the driver that caused the accident was negligent and was not driving safely, then the survivor of the deceased may sue the negligent driver because of a wrongful death. If a patient died at the hands of a doctor, then, depending on the specifics of the case, the case might be considered medical malpractice and wrongful death. Because this case was a wrongful death, then the surviving family can sue the doctor or medical institution for economic losses.

Who may sue for wrongful death?

When someone dies, the deceased’s assets are usually collected into what is called an “estate.” If a spouse, parent, child or family member of a decedent wants to sue for wrongful death, then he or she will act as the representative of that estate. In this way, the person who is representing the estate is suing for benefits on behalf of the decedent. Typically, someone only has two years after the date of the death of their family member to commence a lawsuit. Therefore, one should talk to a lawyer as soon as possible after the death. Attorneys cannot help ease one’s suffering after a loss, but an attorney can help offer closure in the case of negligence by requesting economic compensation for losses and future losses.

The New York State Estate, Powers, and Trust Laws (EPTL) cover many aspects of wrongful death cases. Section 5-4.1, “Action by personal representative for wrongful act, neglect or default causing death of decedent,” states,

1. The personal representative, duly appointed in this state (New York) or any other jurisdiction, of a decedent who is survived by distributees may maintain an action to recover damages for a wrongful act, neglect or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued. Such an action must be commenced within two years after the decedent’s death; provided, however, that an action on behalf of a decedent whose death was caused by the terrorist attacks on September eleventh, two thousand one, other than a decedent identified by the attorney general of the United States as a participant or conspirator in such attacks, must be commenced within two years and six months after the decedent’s death. When the distributees do not participate in the administration of the decedent’s estate under a will appointing an executor who refuses to bring such action, the distributees are entitled to have an administrator appointed to prosecute the action for their benefit…

After which types of accidents can one sue for wrongful death?

The most common types of accidents that lead to wrongful death cases are:

  • Medical Malpractice
  • Motor Vehicle/Automobile Accidents
  • Buildings and Construction Site Accidents

What types of compensation can survivors ask for?

One can seek compensation for economic damages related to the death of a family member. Economic damages that one may request include:

  • Lost wages and earnings
  • Lost savings
  • Lost inheritance
  • Lost benefits (such as health insurance or a pension from a job)
  • Loss of consortium (companionship) to the survivor(s)

Expert economists, accountants, and actuaries and financial analysts can be tasked with calculating the above compensations. These experts must calculate the financial impact of an individual to a family over time. They take many factors into account when making their calculations. The experts also take into account how economically dependent the family was on the deceased. While this may sound harsh or cold, it is important to remember that when a family loses a significant member, they will be without his or her income forever and may struggle economically. Therefore, the calculations of the experts are integral in providing important benefits in the event of a wrongful death.

One can also seek pecuniary damages. These are monetary damages with a fixed number, such as funeral expenses and medical bills prior to death.

In New York State, unlike many other states, one cannot sue for non-economic damages. However, there is an exception that allows survivors to sue for damages related to emotional distress. If someone was present at the scene of the accident while his or her family member died, then, and only then, the survivor is allowed to sue for money to compensate emotional distress. This situation is not always the norm, so it is important to discuss your options thoroughly with an experienced lawyer.

Section 5-4.3 of the EPTL, “Amount of recovery,” discusses the types of monetary damages that one may recoup,

“(a) The damages awarded to the plaintiff may be such sum as the jury or, where issues of fact are tried without a jury, the court or referee deems to be fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought. In every such action, in addition to any other lawful element of recoverable damages, the reasonable expenses of medical aid, nursing and attention incident to the injury causing death and the reasonable funeral expenses of the decedent paid by the distributees, or for the payment of which any distributee is responsible, shall also be proper elements of damage. Interest upon the principal sum recovered by the plaintiff from the date of the decedent’s death shall be added to and be a part of the total sum awarded. (b) Where the death of the decedent occurs on or after September first, nineteen hundred eighty-two, in addition to damages and expenses recoverable under paragraph (a) above, punitive damages may be awarded if such damages would have been recoverable had the decedent survived. (c) (i) In any action in which the wrongful conduct is medical malpractice or dental malpractice, evidence shall be admissible to establish the federal, state and local personal income taxes which the decedent would have been obligated by law to pay. (ii) In any such action tried by a jury, the court shall instruct the jury to consider the amount of federal, state and local personal income taxes which the jury finds, with reasonable certainty, that the decedent would have been obligated by law to pay in determining the sum that would otherwise be available for the support of persons for whom the action is brought. (iii) In any such action tried without a jury, the court shall consider the amount of federal, state and local personal income taxes which the court finds, with reasonable certainty, that the decedent would have been obligated by law to pay in determining the sum that would otherwise be available for the support of persons for whom the action is brought.”

Working with a lawyer

If your family member died at the hands of someone else due to his or her negligence, then this may be a wrongful death matter. You may be able to seek compensation from different people, hospitals, corporations or insurance companies. An attorney that understands the law can help recover compensation funds. Jayson Lutzky is a lawyer with over 32 years of experience. He has a Bronx, New York office and has recovered millions for past clients. Mr. Lutzky offers free in-person consultations. Call 718-514-6619 to schedule an appointment. Visit www.MyNewYorkCityLawyer.com to learn more about Mr. Lutzky.