Personal Injury Law provides for recovery when you have suffered the loss of a family member who was killed in an accident or died from the negligence of someone else. This right to recover is known as a claim for wrongful death. In many states, wrongful death statutes (laws) were enacted to provide recovery for the survivors of wrongful death decedent. Under the wrongful death statute, an attorney can file a complaint for damages. Filing the complaint starts the lawsuit. Normally, an attorney will make every effort to settle the claim without having to file a lawsuit in order to save you the time and expense of litigation. Often, wrongful death cases may settle without having to go to trial. If a reasonable settlement offer is not offered to you, an attorney can file a complaint and start the litigation process on your behalf.
In a wrongful death case, you need to establish that the negligent or intentional misconduct was the cause of the wrongful death. You will also need to establish that the person or company should be held responsible for the misconduct – this is establishing liability for the accident. Once you establish these factors (causation and liability) you may have a viable wrongful death claim which would entitle recovery under the Wrongful Death Statute.
Under the Wrongful Death Statute, the deceased’s heirs could have a right to receive compensation in the form of money damages for their loss of companionship, loss of society, loss of probable support – grief – or sorrow, loss of comfort, loss of consortium, as well as damages for pain, suffering or disfigurement of the decedent. In addition, the damages recoverable by the personal representatives of a decedent’s estate can include special damages (such as the deceased’s medical expenses), which were sustained or incurred before death, as well as funeral expenses, and exemplary or punitive damages, that the wrongful death victim would have recovered if he or she had lived, but do not include damages for pain, suffering or disfigurement of the decedent. These are they damages which may be available in a wrongful death case. These different types of damages may not be the same under the law of other states, so you may need to consult a local personal injury attorney if you do not live in Texas.
It is difficult to think about filing a lawsuit when you are dealing with the loss of a family member. There are many things to do after an unexpected and tragic death such as contacting other relatives, making the funeral arrangements, taking care of unfinished business and settling the estate of the wrongful death victim. The magnitude of the emotional and financial losses you have suffered is often overwhelming. You may want to consider the benefits of grief counseling if you or your family are having a hard time adjusting to the unexpected loss. When you are ready to evaluate your right to a wrongful death claim, an attorney can help you determine if you have a viable case. Many attorneys provide free legal advice in an initial consultation.
If you want to discuss wrongful death or any other personal injury claim, you can get a free consultation with our law firm. We provide legal representation for wrongful death and other personal injury claims throughout the state.
This case is governed by State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985). Eaton requires that HN1a bystander plaintiff be closely related to the victim of an accident, be located near the scene of the accident, and suffer a shock resulting from direct emotional impact stemming from the sensory and contemporaneous observance of the accident. Id. at 716, 710 P.2d at 1377-78. The majority of the cases on negligent infliction of emotional distress have involved automobile accidents, including Eaton. Thus, some of the language of these cases cannot appropriately be applied to the negligence of a pharmacist dispensing drugs. In addition to debating whether a plaintiff is a bystander or what the plaintiff actually observed, we should to look to the basic principles underlying the tort of negligent infliction of emotional distress.
In Eaton, this court discussed some of the history of the tort of negligent infliction of emotional distress due to injury to another. This court embraced the ruling in Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (Cal. 1968) by saying:
The [Dillon] court held that liability could be circumscribed in these cases, as in all tort cases, by the application of the general principles of negligence. 441 P.2d at 924. The trial courts could determine whether the accident and the harm to the bystander was reasonably foreseeable and “thus mark out areas of liability, excluding the remote and unexpected.” 441 P.2d at 921. We agree with the reasoning of the California court. We “see no good reason why the general rules of tort law, including the concepts of negligence, proximate cause, and foreseeability, long applied to all other types of injury, should not govern the case before us.” 441 P.2d at 924 . . . See also II Harper and James Sec. 18.4, p. 1039 (“mechanical rules of thumb which are at variance with these [general] principles [of tort law] do more harm than good.”)
Eaton, 101 Nev. at 713, 710 P.2d at 1376.
Under this reasoning, it is not the precise position of plaintiff or what the plaintiff saw that must be examined. The overall circumstances must be examined to determine whether the harm to the plaintiff was reasonably foreseeable. Foreseeability is the cornerstone of this court’s test for negligent infliction of emotional distress. Id. at 715.
In this case, a daughter purchased prescription medication for her mother. The daughter then initiated and continued administration until her mother was rendered comatose. In effect, because of the pharmacist’s negligence, the daughter poisoned her mother. Under these facts, it was entirely foreseeable that the drug would significantly harm the actual patient and that a close relative would continue administration until the ultimate catastrophic effect was realized.
Of course, the plaintiff still faces the burden of proving her damages and proving that they were the proximate cause of the pharmacist’s negligence. The jury should be allowed to make the determination of whether [the]’ claim is meritorious.
To create liability for defamation there must be:
(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher; and
(d) either actionability of the statement irrespective of special harm, or the existence of special harm caused by the publication . . .
A statement is defamatory when it would tend to lower the subject in the estimation of the community, excite derogatory opinions about the subject, and hold the subject up to contempt. In reviewing an allegedly defamatory statement, the words must be reviewed in their entirety and in context to determine whether they are susceptible of a defamatory meaning. Whether a statement is defamatory is generally a question of law; however, where a statement is susceptible of different constructions, one of which is defamatory, resolution of the ambiguity is a question of fact for the jury.