There is a lot of confusion surrounding the differences between medical malpractice and wrongful death. Both are legal terms that describe situations in which someone has died due to the negligence or recklessness of another person or entity.
However, there are some important distinctions between the two that you need to know if you are considering filing a lawsuit. This blog post will explore the key differences between malpractice and wrongful death lawsuits. We will also provide tips on choosing the right legal representation for your case.
- 1 What Is A Malpractice?
- 2 Elements Of Medical Malpractice
- 3 What About Compensation?
- 4 What Is Wrongful Death?
- 5 The Intersection Of Malpractice And Wrong Death
- 6 Consequences Of A Wrongful Death Lawsuit
- 7 How To Avoid A Wrongful Death Lawsuit
- 8 What About Compensation?
- 9 Filing A Wrongful Death Lawsuit
- 10 Different Rules Of Filling
- 11 Choosing The Right Attorney
- 12 The Bottom Line
What Is A Malpractice?
Malpractice is a type of civil lawsuit that arises when a person is injured or killed due to the negligence of a professional, such as a doctor, lawyer, or accountant.
For a malpractice claim to be successful, the plaintiff must prove that the professional owed them a duty of care and that this duty was breached. The plaintiff must also show that the professional’s negligence caused them to suffer damages.
Types Of Malpractice
There are many different types of malpractice. Still, some common examples include the following:
- Medical malpractice: It occurs when a healthcare professional, such as a doctor or nurse, provides substandard care that leads to injury or death.
- Legal malpractice: This happens when an attorney fails to provide adequate representation or commits another error that leads to their client being convicted of a crime or losing a civil case.
- Dental malpractice: This can occur when a dentist makes an error that leads to their patient suffering pain or financial damages.
- Architectural malpractice: This happens when an architect’s error causes a building to collapse or otherwise be unsafe.
Elements Of Medical Malpractice
Four main elements must be present for a medical malpractice claim to be successful. They are:
- Duty of care: The healthcare professional owes the patient a duty of care. This means that they were required to provide a certain standard of care.
- Breach of duty: The healthcare professional breached their duty of care. This means that they did not meet the required standard of care.
- Causation: The healthcare professional’s breach of duty must have caused the patient’s injury or death.
- Damages: The patient must have suffered financial or emotional damages due to the injury or death.
Common examples of medical malpractice include:
- Misdiagnosis or delayed diagnosis
- Surgical errors
- Anesthesia errors
- Birth injuries
- Prescription errors
What About Compensation?
In a successful medical malpractice lawsuit, the plaintiff may be awarded damages for their injuries. These damages can include:
- Past and future medical expenses
- Lost wages
- Pain and suffering
- Loss of enjoyment of life
What Is Wrongful Death?
A wrongful death lawsuit is a type of civil action that may be brought against someone who has caused the death of another person through negligence or recklessness.
Unlike a malpractice case, which the injured party or their family brings, a wrongful death lawsuit is filed by the deceased person’s surviving relatives. To win a wrongful death case, the plaintiff must prove that the defendant’s negligence or recklessness led to the death of their loved one.
Causes Of Wrongful Death
There are many ways in which someone can cause the wrongful death of another person. Some common examples include:
- Car accidents: If a driver is texting or driving recklessly and causes a fatal car accident, they may be liable in a wrongful death lawsuit.
- Medical errors: If a doctor prescribes the wrong medication or makes a mistake during surgery that leads to a patient’s death, the doctor may be sued for wrongful death.
- Workplace accidents: If an employee is killed on the job due to their employer’s negligence, the employer may be liable in a wrongful death lawsuit.
Damages In A Wrongful Death Lawsuit
If the plaintiff is successful in a wrongful death lawsuit, they may be awarded damages for the following:
Medical expenses are the costs of any medical treatment that is required due to an injury or illness. This can include hospitalization, surgery, medication, and physical therapy.
Funeral And Burial Expenses
Funeral and burial expenses are the costs associated with a funeral or memorial service and the costs of cremation or burial.
Lost income would be the amount of money the deceased person would have earned if they did not die. This can include wages, salary, commissions, and benefits.
Loss Of Companionship
Loss of companionship is the loss of emotional support and love that the deceased person provided to their family.
Pain And Suffering
Pain and suffering are the physical and emotional pain the deceased person experiences before death.
Punitive damages punish the defendant for their actions and deter others from engaging in similar behavior.
The Intersection Of Malpractice And Wrong Death
It is important to note that a wrongful death claim can also arise from a situation of malpractice. For example, if a doctor fails to diagnose a patient’s cancer in its early stages and the patient later dies of the disease, the doctor could be sued for both medical malpractice and wrongful death.
Lung Cancer Diagnosis
In the case of a lung cancer diagnosis, for example, someone might have a strong malpractice claim if their doctor:
- Failed to order the appropriate tests
- Misread or ignored test results
- Failed to refer the patient to a specialist
- Delayed in making a diagnosis
Heart Attack Failure To Diagnose
Another example where malpractice and wrongful death might intersect is in the case of a heart attack. If a doctor fails to diagnose a patient’s heart attack, the patient dies. As a result, the doctor could be sued for medical malpractice and wrongful death.
However, if the doctor correctly diagnosed the patient but died anyway, the family would not have a successful wrongful death claim. While the doctor might be negligent in a medical malpractice case, they would not be responsible for the patient’s death.
Consequences Of A Wrongful Death Lawsuit
If you are liable in a wrongful death lawsuit, you may be required to pay damages to the deceased person’s family. These damages can be substantial, especially if the deceased was the primary breadwinner in the family. In addition, a wrongful death lawsuit can damage your reputation and result in negative publicity.
How To Avoid A Wrongful Death Lawsuit
The best way to avoid a wrongful death lawsuit is to take precautions to prevent accidents and injuries that could lead to someone’s death.
For example, if you are a doctor, follow protocols and care for diagnosing and treating patients. If you are an employer, ensure that your workplace is safe and that employees are properly trained. If you are a driver, obey traffic laws and avoid distractions.
What About Compensation?
In some cases, the person responsible for the death may offer to pay the deceased person’s family members out of court. While this may be tempting, it is important to speak with an attorney before accepting any offers. An attorney can help you determine if the offer is fair and ensure that your rights are protected.
Filing A Wrongful Death Lawsuit
If you have lost someone else’s due to this occurrence, you may be considering filing a wrongful death lawsuit. However, before doing so, it is important to understand the elements of a successful wrongful death claim and the damages that may be available. An experienced attorney can help you navigate the legal process and protect your rights.
Different Rules Of Filling
In addition, choosing an attorney familiar with the rules of filing a malpractice or wrongful death lawsuit in your state is important. Each state has different deadlines for filing these types of lawsuits. If you miss the deadline, you may be barred from recovery.
Choosing The Right Attorney
When choosing an attorney to represent you in a malpractice or wrongful death lawsuit, it is important to choose someone with experience litigating these cases. It would be best to ask about the attorney’s success rate in similar cases.
Traits Of An Experienced Attorney
An experienced attorney will also be able to provide you with an estimate of the value of your case and explain the likely outcome. In addition, an experienced attorney will be familiar with the expert witnesses who may be needed to testify on your behalf and know how to prepare your case for trial properly.
What You Can Expect
If you file a malpractice or wrongful death lawsuit, you can expect the process to take at least several months. In some cases, it may take years to resolve the case.
The first step in filing a lawsuit is to draft and file a complaint. This document will outline your allegations against the defendant and provide the relief you seek.
After the complaint is filed, the defendant will have an opportunity to respond. In most cases, the defendant will file a motion to dismiss the case. If this motion is granted, the case will be dismissed.
The Bottom Line
Malpractice and wrongful death claims are complex legal matters. If you have lost a loved one due to someone else’s negligence, you must speak with an experienced attorney who can help you understand your rights and options.