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To establish legal liability for wrongful death, a plaintiff must first demonstrate that the defendant had a duty of care to the decedent.
Duty of Care
A duty of care can be established by the existence of a special relationship. Common examples include a doctor who has a duty to use reasonable competence and care in diagnosing and treating ailments of a patient and a bus driver to find a sleeping child on a bus after driving a route. Many relationships exist and each carries with it unique and specific rules outlining the attendant duty of care. In the absence of a relationship, negligence, recklessness, or malice intent must be proven.
Breach of Duty
Once it has been shown that a duty of care was owed by the defendant to the decedent, it must then be demonstrated that the duty was breached. With the existence of a relationship, breach usually involves an omission to act, which is construed as an affirmative act according to the law. In other words, doing nothing constitutes an offense. One example was established in Tarasoff v. Regents of University of California. In that case, a mental health patient made statements to a mental health professional that he was planning to murder a woman with whom he had fallen in love but who rejected his advances. After the patient did, in fact, murder the woman, the California Supreme Court found that the doctor failed to meet a duty of care to the murder victim.
If no special relationship exists, winning a wrongful death case will involve demonstrating that the defendant was negligent in ignoring a significant risk posed to others, reckless in executing an action that created significant risk to others, or that the defendant acted with malicious intent to cause death or bodily harm to the decedent.
Malice intent enters into the realm of criminality. Despite the fact that the burden of proof in a criminal case is that of proof beyond a reasonable doubt, a preponderance of the evidence remains the standard in all civil cases, and therefore, it is easier to prove civil liability arising from a criminal act than it is to prove criminal liability.
Of course, evidence is needed to prove any case. Documents such as death certificate, autopsy records, and health records are usually paramount in proving an action for wrongful death. Discrepancies among health records, omissions within a record, or physical altering can constitute liability or attempts to conceal wrongful action on the part of medical professionals. Some verbal statements can be admitted as evidence such as excited utterances, made under stress shortly after an incident, by first responders or doctors.
After liability is demonstrated, a measure of harm will be used by the court to estimate damages. Tax returns or other financial records showing the earning power of a contributor to a household will assist in showing the financial loss associated with the loss of the decedent.
If you suspect that the death of a loved one occurred under wrongful action, learn your rights. Contact or call the Kamerow Law Firm, PLLC at 703-370-8088 and let us help you today.