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A claim for wrongful death may exist when different types of negligence result in someone’s demise. Wrongful death can involve a fatal car accident. Wrongful death also occurs when medical malpractice causes death. As a result, any medical malpractice discussed on this website can become a wrongful death claim if the malpractice results in someone dying. The malpractice includes surgical errors, misdiagnosis, and emergency room malpractice. If medical malpractice occurred, but the person died of something completely separate, it is not wrongful death.
Lawyers must prove that the medical malpractice caused the death for a wrongful death claim to apply. An autopsy is the best indication of the cause of death because of the in-depth examination and testing. If your family member dies, and you believe there may be medical malpractice, request an autopsy. The medical examiner or hospital may decline to do an autopsy, and you may not be able to require them to do one.
The death certificate and medical records are often sufficient to establish the cause of death. These are instances where the cause of death is apparent.
In a regular medical malpractice case, the claimant is the patient injured by the treatment. In wrongful death malpractice, however, the patient has died.
Wrongful death laws can vary from state to state. For instance, in Maryland, when someone dies from negligence, the people allowed to be claimants are those with the following relations to the victim: spouse, parents, and children. CJ 3-904(a)(1)). Suppose there is no spouse, parent, or child. In that case, others related by blood or marriage who were substantially dependent upon the deceased may file a wrongful death claim. CJ 3-904(b).
In addition to the above claimants, the deceased’s estate is a plaintiff in an accompanying survival case. By statute, the deceased’s claim survives and is not extinguished by the death. The family or lawyers have to open an estate in order to pursue the claim. In Maryland, the Register of Wills or the Orphans’ Court will designate a Personal Representative. The Personal Representative will receive an important document called Letters of Administration. This document will also allow the administrator to obtain medical records.
Wrongful death claimants seek non-economic damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education. They can also seek economic damages for the loss of financial support and the value of services the deceased would have provided.
In the survival claim, the Personal Representative can seek as non-economic damages conscious pain, suffering, or mental anguish. Recoverable economic damages include medical expenses and loss of earnings prior to death. Damages also include funeral expenses up to $5,000.
Maryland has a cap on noneconomic damages in medical malpractice cases. CJ 3-2A-09. It adjusts annually. In 2024, the cap for a medical malpractice claim is $890,000. When there is a wrongful death with two or more claimants, the limitation on noneconomic damages is 125% of the medical malpractice cap. For 2024, that figure is $1,112,500.
There is no cap on economic damages.
Wrongful Death Example – Sepsis
An example of a wrongful death claim involves death from sepsis. Sepsis starts with an infection in the body. It can worsen if the medical staff does not successfully treat the condition. At some point, sepsis can occur when your body’s immune system stops fighting against the infection and starts fighting against the body in a process that damages the body’s organs.
Sepsis is most common in seniors, those with significant underlying medical conditions, and those with weak immune systems. Sepsis is a medical emergency and often causes death. Over 350,000 sepsis deaths occur every year in the USA. A wrongful death claim may be possible if a sepsis death occurred because of failure to properly treat the initial infection or failure to promptly respond early in the progression of the sepsis.
If you believe a family member may have died from wrongful death malpractice, call 800-604-0704 for your free consultation and to speak directly with Mark Kopec. He is a top-rated Maryland wrongful death lawyer.
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