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New York Wrongful Death Lawyers

At Burns & Harris Attorneys At Law, we know that losing anyone in an accident or another wrongful act is difficult. You are entitled to receive compensation for your loss, even if that compensation can never replace your loved one. 

If you believe you have a case for wrongful death, you should seek legal advice right away. Burns & Harris Attorneys At Law is available at 800-724-6529 to answer your questions.

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wrongful death

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: 

There must have been a death

This seems foolishly obvious, but a wrongful death suit cannot be filed on behalf of a person who is brain dead or in a coma.

The death was caused by the wrongful act or negligence of another

Sometimes, accidents are only accidents. Other times, the cause of death is not related to the wrongful act itself.

The victim would have had a legal cause of action for negligence if they had lived

Most of the time, this is the case. However, if the defendant owed no duty to the victim, an element of negligence, then there are no grounds for a wrongful death claim.

There are survivors who have suffered specific damages because of the death

An unrelated third party cannot file a wrongful death suit on behalf of a victim with no family. The victim may have been wrongfully killed, but there will not be grounds for a lawsuit.

For instance, suppose the victim was killed in a drunk driving accident. The survivors would be able to 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 and 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 suit, and you will only get monetary compensation.

Other differences between a wrongful death suit and a criminal case include:

Civil case:

The family or personal representative is the plaintiff.

The burden is on the plaintiff to prove the case. The defendant can try to prove they are innocent or that the victim was partially at fault for the accident.

The standard of evidence is “preponderance of the evidence.” This means that it is more likely than not that the defendant caused the death.

The plaintiff may be awarded monetary compensation for the death.

There is a two-year statute of limitations to bring the case.

Criminal case:

The state prosecutes the case on behalf of everyone in the state (e.g., “The People of the State of New York vs. John Doe”).

The prosecution must prove the case. The defendant must prove nothing. They are innocent until proven guilty.

The standard is “Beyond reasonable doubt.” This very high standard means there is no realistic way anyone else could have committed the crime except the defendant.

The defendant faces criminal penalties, such as imprisonment or probation. The victim’s family receives no monetary compensation.

In the case of a homicide, there is no statute of limitations. The state may bring the case whenever they have sufficient evidence for a conviction.

The distinctions are important because many people feel left out of criminal trials or that justice was 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 personal representative of the estate 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 as part of the estate to the heirs and beneficiaries.

The personal representative of the estate 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 does not allow a family member to bring 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.

Funeral and burial expenses

This is no small award since funerals are costly. If the victim has already been buried, which is probable, the award will be remitted to the estate.

Reasonable health care expenses related to the victim’s final injury or illness

These will also be returned to the estate.

Lost wages and projected income the victim would have brought to the family

If a victim was the sole support of their family and was expected to continue working, this can be a substantial figure.

Any loss to the survivors’ potential inheritance

For instance, if the spouse had anticipated receiving the victim’s pension, they would be allowed to make a claim for that amount.

Pain and suffering experienced by the victim during the injury or illness that led to the death

It will have to be shown that the victim could perceive pain and suffering prior to death. For instance, a suit on behalf of a coma victim would probably be unable to make such a claim.

Reasonable interest calculated on the total award from the date of the death forward

New York currently sets this interest at nine percent from the date of the death.

New York does not allow family members to sue for their own 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 in an unusually malicious or reckless manner.

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 who is still trying to handle the loss of 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 Burns & Harris Attorneys At Law, 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 are working out the other details that go along with the loss of a loved one.

Our legal team will collect the documentary evidence needed to make your case, ensure that all filing deadlines are met, and negotiate with the opposing party on your behalf. 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 Burns & Harris Attorneys At Law at 800-724-6529. You can also fill out our intake form and a member of our team will call you.  Remember, you have a limited amount of 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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