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Wrongful Death and Medical Malpractice

Stethoscope and BookTo lose a loved one is beyond comprehension for most people. To lose a loved one due to the negligence of another person is even worse, and it is not at all incomprehensible that many bring suit if they believe their loved one’s death was due to actionable negligence. Understanding the tort of wrongful death and how it applies to medical malpractice can give you a clearer picture of what you may be able to receive, and what you may not.

Relationship Between the Two Torts

Wrongful death and medical malpractice are two separate torts, meaning that wrongful death can occur without medical malpractice, and vice versa. However, they often intersect, because deaths caused by medical malpractice can qualify as wrongful under California law. Wrongful death is defined in the state as “the death of a person caused by the wrongful act or neglect of another.” That ‘wrongful act’ or ‘neglect’ may very easily be proved to constitute medical malpractice in the appropriate court.

Medical malpractice in California occurs any time a healthcare professional breaches the prevailing standard of care while providing treatment to a patient. If breach can be proved, as well as harm resulting from that breach, medical negligence may be proven - and medical negligence certainly can constitute ‘neglect of another.’

The major differences between a standard wrongful death case and a wrongful death allegedly involving medical malpractice are twofold. First, non-economic or intangible damages are capped at $250,000.00 by the Medical Injury Compensation Reform Act (MICRA), while in non-malpractice wrongful death cases, no cap exists. Second, there are different notice requirements for a medical malpractice defendant than there are for a wrongful death defendant. If you plan to bring suit against a medical professional, you are required to provide them with notice 90 days before you commence your suit.

Survival Actions and Wrongful Death Suits

California allows two different types of wrongful death suits, though if appropriate, they may be consolidated into one action. It is extremely important to understand which is the best choice in your situation, especially when your case involves alleged medical malpractice, because of the statute of limitations .  While most personal injury cases have a statute of limitations of two years, cases involving medical malpractice must be brought within one year of the date that you discovered or should have discovered your injury, or three years from the date of the injury, whichever is earlier. If you file the wrong type of action, you may not get another chance.

A survival action may be brought by the personal representative of the deceased person’s estate, and it essentially encompasses the causes of action that the person would have been able to bring if they were still alive. For example, if a man dies on the operating table due to medical negligence, his representative may bring a survival action for medical malpractice, because the man would have been able to do so while he was alive.

Conversely, a wrongful death suit may only be brought by specific family members of the decedent - most often the spouse, children, or parents - and may only sue for their own losses, not for those of their deceased loved one. If, for example, a widow brings a wrongful death suit, she may sue for damages such as loss of support or consortium, pain and suffering, and funeral expenses, but not for lost wages or medical expenses - those would be sought in a survival action.

An Experienced Attorney Can Help

For an individual who has just lost a loved one, things can seem unbelievably confusing and overwhelming. A good medical malpractice attorney can make all the difference. The compassionate San Jose medical malpractice attorneys at Corsiglia, McMahon & Allard, L.L.P. know how hard it can be to navigate the long legal process after such a traumatic event, and we are equipped to help you through it. Call us today for a free consultation. We serve San Jose, the Bay Area, and the counties of Alameda, Monterey, Santa Clara, San Benito and San Mateo.

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