New York Wrongful Death Lawyers
At Harris Keenan & Goldfarb, we know that losing anyone in an accident or another wrongful act is difficult. You are entitled to compensation for your loss, even though that compensation can never replace your loved one.
Wrongful Death: What It Is and Is Not
Not every death caused by another person’s negligence is a wrongful death. In a wrongful death case, the plaintiff bringing the case (you) is standing in for the person who was killed. To bring a case, these conditions must apply:
For instance, suppose the victim was killed in a drunk driving accident. The survivors could sue on behalf of the victim because the victim could have brought a personal injury suit against the driver. However, if the victim survived the accident, went to a hospital, and then died because of choking on a dinner roll while eating a hospital meal, there would be no grounds for a suit.
A wrongful death lawsuit is not a criminal case. The wrongdoer won’t go to jail, nor will there be any other criminal penalties. A wrongful death suit is a civil one; you will only get monetary compensation.
Other differences between a wrongful death suit and a criminal case include:
The distinctions are important because many people feel left out of criminal trials or that justice is denied if the defendant is found not guilty. A civil case has a lower burden of proof and a chance of gaining closure for survivors of accidental and criminal deaths.
Who Can File a Wrongful Death Case?
In New York, only the estate’s personal representative may file a wrongful death suit. Under New York law, the suit is being filed on behalf of the estate, and the compensation recovered is technically part of the estate. Then the award is distributed to the heirs and beneficiaries as part of the estate.
The estate’s personal representative might be a family member if they were designated in the will or have been named by the court as personal representative if the decedent did not leave a will. Unlike some states, New York prohibits a family member from bringing the case directly.
What Compensation Can I Receive in a Wrongful Death Case?
In a wrongful death suit, the compensation that could be awarded is that which the victim could have won if they filed their own case, with a few additions.
New York does not allow family members to sue for their pain and suffering, mental anguish, or loss of consortium. However, the jury can award any minor children the value of parental care and guidance they will lose because of the death.
Punitive damages may be awarded if the victim would have been able to obtain punitive damages had they brought the case. Punitive damages can be awarded if the person at fault acted unusually maliciously or recklessly.
Frequently Asked Questions
In 1969, the New York Court of Appeals held that an unborn child may not be the subject of a wrongful death suit. The Court reasoned that a wrongful death suit is a personal injury suit filed on behalf of the decedent for the benefit of the estate. An unborn fetus has no estate and, therefore, no “pecuniary losses” to be restored. The mother may sue for any malpractice on her person, which led to the miscarriage or fetal death.
In New York, any wrongful death may be the subject of a wrongful death suit. In other words, there is no age limit on a wrongful death lawsuit. A wrongful death lawsuit may be brought on behalf of a young child or elderly person.
Yes. However, you will probably need the assistance of an attorney to do so. Government entities, including the New York City Transit Authority, the City of New York, or the state, are protected by a legal doctrine called “sovereign immunity.” This means they may not be sued by a private citizen unless the the right to immunity has been waived.
New York has waived immunity for public transportation accidents, but a plaintiff must still meet several requirements and deadlines.
- A Notice of Claim must be filed with the city or agency within 90 days of the incident. This does not mean the lawsuit itself must be filed, but a notice that the plaintiff intends to bring a suit before the statute of limitations runs.
- The city has 30 days to request a hearing on the matter. During that time, they will investigate the claim and determine the validity of the case. If they request a hearing, the individual bringing the claim (the personal representative) will need to appear and testify.
- Following the hearing, the victim’s representative has two years from the date of the death to bring a wrongful death claim.
Missing the Notice of Claim deadline may mean that the plaintiff has missed their opportunity to file a lawsuit. There may be cases where an exemption is granted. This is something to discuss with your attorney.
For a wrongful death claim due to accident or negligence, the statute of limitations in New York is two years from the date of the person’s death. The statute begins to run on the date of the victim’s death.
In a medical malpractice suit, the statute is slightly more complicated. The representative has two and a half years (30 months) to file the lawsuit. However, if the malpractice occurred as part of a continuing course of treatment, a medical malpractice action may be filed within two and a half years (30 months) from the date of last treatment. There are exceptions:
- If a foreign object is left in the person’s body, the action may be commenced within one year from the date the object was discovered or should have been discovered, whichever is earlier.
- Where the action is based upon an alleged failure to diagnose cancer or a malignant tumor, the action may be commenced within two years and six months of the later of either (1) when the person knows or should have known of the misdiagnosis, so long as the action is commenced no later than seven years after the misdiagnosis; or (2) the date of the last treatment where there is continuous treatment for such injury, illness or condition.
For instance, if a patient was being treated for cancer, went in for surgery, and died when the surgeon sneezed at the wrong moment, the statute would begin on the date the patient was declared dead and last for two years.
If the patient was being treated for cancer, and after they died, it was discovered that the doctor had been treating the patient for skin cancer for the past ten years, but the patient actually had colon cancer, and this led to their death, the statute would begin on the date the survivors discovered the careless treatment and run for 30 months from that date.
If a criminal action has begun against the same defendant for the same cause of death (such as a homicide case), the personal representative has one year from the termination of the criminal action to bring a wrongful death lawsuit, even if the deadline has already expired.
How We Can Help
All this can seem extremely daunting to a layperson, especially one still trying to handle losing a loved one. If your family member died because of another person’s negligence or careless behavior, you are entitled to compensation on their behalf for the loss you have suffered.
At Harris Keenan & Goldfarb, our attorneys understand the complexities of wrongful death laws, medical malpractice, and the statutory requirements for bringing a lawsuit. We will handle the details for you while you work out the other details that accompany losing a loved one.
Our legal team will collect the documentary evidence needed to make your case, ensure all filing deadlines are met, and negotiate with the opposing party. The personal representative has a long roster of things that need to happen following a person’s death, and we can help make their tasks easier in this matter.
If you have had a loved one die because of negligence, accident, or medical malpractice, and you believe you have a case for wrongful death, you should contact the New York wrongful death attorneys of Harris Keenan & Goldfarb at 800-724-6529. You can also fill out our intake form, and a member of our team will call you. Remember, you have limited time to file your case, so you should not delay. The consultation is confidential, and there is no cost to you until the case is over. Contact us today.
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