As a wrongful death lawyer, I am frequently asked about what damages are available when a loved dies as a result of negligence, recklessness or wrongdoing of another. “Damages” means the harms and losses that caused by a tortious act, like personal injuries or fatality caused due to a car wreck, truck crash, medical malpractice, workplace injury, explosion, electrocution, fall, nursing home abuse or neglect and so on.
Damages fall broadly into two categories: noneconomic losses and economic losses. Noneconomic damages include pain, suffering, emotional distress, loss of enjoyment of life, loss of usual activities and disability. These are sometimes called hedonic damages. Economic damages include costs of medical treatment, including hospital bills, doctor bills, and costs associated with rehabilitation and therapy.
In the setting of wrongful death cases, damages are slightly different than in personal injury lawsuits. Wrongful death damages include damages associated with the last illness and then damages suffered by the decedent’s heirs at law by virtue of the decedent’s death. If an individual sustains a fatal injury, but survives for awhile before dying, the damages occurring before death are called survival damages. These may include the decedent’s pain and suffering and medical expenses associated with the last illness. On the other hand, if the individual dies instantly, then these survival damages are not available. Lawyers may sometimes find value in proving that the deceased individual survived for a short period of and suffered conscious pain and suffering if only for seconds in order to avail themselves to survival type damages. These mental gymnastics arise out of convoluted state laws. For example, in Ohio, punitive damages are not available in wrongful death cases for some archaic reason. So, lawyers will try to bootstrap a survival claim on in order to claim punitive damages when the wrongdoing that led to death is particularly egregious.
Wrongful death damages might include loss of earnings if the decedent was a breadwinner. Damages also include loss of consortium and mental anguish experienced by the beneficiaries of the estate. Mortality statistics can be used to estimate the amount of losses.
Many States have caps on noneconomic damages or both noneconomic and economic damages. These caps were enacted by a very slick public relations campaign designed to turn the public against victims of injury by demonizing the lawyers who represent them. Big business, the insurance industry and other special interests were successful in corrupting politicians with large campaign contributions, personnel with ties to industry and industry-written legislation. These laws make it very difficult to obtain a just and fair verdict or settlement for injury victims. In many cases, justice is impossible. In other states, caps do not apply to wrongful death cases. You should consult with an experienced wrongful death lawyer to determine which damages apply in your state.