A wrongful death claim is a legal claim for medical negligence causing a fatality. It is based on a healthcare provider’s failure to provide a professional standard of care. The case is brought on behalf of surviving family members and, if successful, results in an award of monetary compensation.
Understanding Medical Negligence in Wrongful Death Cases
Medical malpractice is:
- Doing what a reasonable healthcare provider would not do
OR
- Not doing what a reasonable healthcare provider would do
When a person receives bad, incompetent, or subpar health care, it may be medical malpractice. Medical malpractice can be an act or a failure to act. It is failing to meet adequate standards in the provision of medical care.
Medical malpractice can result in patient injury. It can also result in patient death. Tragically, up to 250,000 people each year suffer fatal injuries from medical malpractice in the United States.
A wrongful death case is when a wrongful act, neglect, or default causes the death of a person.
It is a situation where the person would have had a personal injury claim if death had not ensued.
A claim can be both medical malpractice and wrongful death.
What Constitutes Medical Negligence Leading to Death?
Wrongful death + Medical negligence = Compensation Claim
When medical negligence results in death, rather than injury, it is a claim for wrongful death. The plaintiffs must prove that the death is the result of substandard medical care.
The Process of Filing a Wrongful Death Claim for Medical Negligence
A wrongful death due to a medical negligence claim has the unique aspects of both types of claims. In South Carolina, there are special procedures for wrongful death claims. There are also special procedures for medical negligence. The plaintiff must follow both sets of rules.
Medical malpractice
- Before filing the formal legal claim, the plaintiff must file a Notice of Intent to File Suit, plus the affidavit of an expert witness. There are certain things this notice must contain, including standard interrogatories and any other standard disclosures.
- Filing the Notice of Intent tolls the statute of limitations.
- The plaintiff must serve the Notice of Intent on all defendants, following service rules.
- After the service of the notice, the parties must participate in mediation at their own expense.
- If mediation is not successful, the plaintiff has 60 days to file suit or until the statute of limitations expires, whichever is later.
- Parties can still expect to participate in mediation during the formal case. They may agree to arbitration or other alternative dispute resolution.
Wrongful death
- A wrongful death claim is brought for the beneficiaries, starting with the spouse and children. If there are none, then the claim is for the parents. If there are no parents, then the claim is for other heirs.
- The executor or administrator brings the action. The beneficiaries receive the proceeds.
- Damages are divided as though the victim had died intestate.
- The personal representative can settle the case.
- Damages are measured by the loss to survivors. Losses are both financial and personal.
Types of Evidence Needed in Medical Negligence Cases
There are several things you must prove for a claim for medical negligence. Evidence will always be specific to the issues in your case. However, here are the things you must prove and the types of evidence that are commonly used.
Evidence Needed in Medical Negligence Cases
| What You Must Prove | Evidence Needed |
| Standard of medical care | Expert witness |
| The person’s medical condition | Records, witnesses |
| Medical care given | Records, tests and procedures, admissions, care providers, family members |
| How the care given breached the standard of care | Expert witness |
| How the breach resulted in the victim’s death | Expert witness, witnesses who observed the victim |
| Damages | Lay witnesses, survivors, income and earnings, funeral expenses, information regarding the personal impact of the loss |
| Proof of death | Death certificate, medical records |
Expert testimony is vital to any medical malpractice claim. A claim must be supported by a combination of lay witnesses and qualified experts who can explain the medical aspects. A plaintiff should pay special attention to the qualifications of experts and pre-trial disclosure requirements.
Common Medical Errors That Result in Wrongful Death Claims
- Surgery errors. Wrong patient, wrong body part, incorrect procedure, foreign object left in the body, failing to monitor anesthesia or signs of distress.
- Diagnosis. Delayed, incorrect.
- Medication. Wrong patient, different medication, drug interactions, missed, too often, wrong dose.
- Sanitation. Failing to clean, wear proper PPE and take other steps to prevent infection. Not responding appropriately to signs of infection.
- Skill. Not having the skill to perform surgery or procedure.
- Falls. Lack of attention or mobility support, mistakes in patient transfer.
- Improper discharge. Discharging a patient too soon, release with inadequate instructions.
- Attention. Not giving the patient enough attention to recognize symptoms and respond to needs.
- Refusing care. Failing to treat a patient because of racism or cultural bias.
- Medical devices. Inappropriate use of a device, failure to monitor or respond to a malfunction.
- Birth injuries. Lack of monitoring and poor response to signs of distress. Failing to plan for the medical needs of mother and child.
How a Lawyer Can Help
When a death occurs due to medical negligence, a lawyer can assist you. They can evaluate the situation to determine if medical negligence occurred. They can use subpoenas and disclosures to build the case.
An experienced lawyer understands the procedural aspects, including the Notice of Intent to File Suit in South Carolina. They can prepare and submit the paperwork.
Losing a loved one to medical negligence is unimaginable. A lawyer can help you during this difficult time, handling the legal aspects of building, pursuing, and negotiating your case.
Contact an Experienced Wrongful Death Lawyer
If you have lost a loved one, we are sorry. You may have a wrongful death due to a medical negligence claim. Bobby Jones is an experienced wrongful death lawyer. We invite you to contact Bobby Jones Law now.
