Albany Wrongful Death Lawyers

Wrongful death can, unfortunately, result from medical malpractice committed by New York physicians, nurses, hospitals, and other medical providers. While doctors and other medical professionals work hard and try to do their best in treating patients, they can and do make mistakes that fall below the standard of care expected of them under the law.

Examples of medical malpractice in New York that can cause a wrongful death include:

Determining whether you have a viable medical malpractice/wrongful death case requires an extensive review of your loved one’s medical history. Our wrongful death attorney will start by having an extensive interview with you.

If it appears your case has merit, your attorney will obtain and review all relevant medical records, as well as relevant medical literature to determine the appropriate standard of care when the death occurred. We then retain the best and most appropriate independent medical experts available to review your loved one’s medical file and to provide us with an objective assessment of your case.

Only then can we tell whether you have viable medical malpractice or wrongful death case. Our office pays all of the fees for obtaining medical records and all of the costs for retaining the medical experts necessary to review your file. We never charge a fee for determining whether your case has merit.

A wrongful death lawsuit in New York can be brought by only the “personal representative” of the decedent’s estate. The personal representative can be an executor named in a will. If no executor is named, a person would need to be appointed as an administrator of the estate by the Surrogate’s Court in the county where the decedent lived at the time of death. An attorney from Powers & Santola, LLP, can help with this process.

A wrongful death claim requires showing that the decedent’s death was caused by the “wrongful conduct or default” of another, which would have allowed the decedent to pursue a cause of action if he or she had not died.

In this sense, a wrongful death action requires proof that is similar to a personal injury claim. The evidence will depend on whether the death involved medical negligence, a construction accident, auto crash, slip-and-fall, or another case type.

The decedent’s comparative fault also will be a factor. The party being sued, or the defendant, may claim the decedent’s own negligence led to his or her death and that any recovery should be reduced in proportion to this degree of fault.

A survival action for pain and suffering requires showing that the decedent was conscious for a period, however brief, between injury and death. The severity of the injuries and duration of the pain and suffering are among the factors considered.

What Type of Evidence Can Be Used in a Wrongful Death Case?

As experienced personal injury lawyers, Powers & Santola, LLP can identify, preserve, and gather critical evidence to help prove your claim. Our lawyers look for compelling evidence that demonstrates that the at-fault party caused the accident and the full extent of your losses. Evidence may include the following:

• Laws, ordinances, and regulations: Local ordinances, state laws, federal trucking regulations, construction and labor laws, safety regulations, and other laws could form the basis of a wrongful death claim. We can use this information to show what the defendant’s legal duty was and how they breached it.
• Accident reports: Accident reports from responding emergency medical technicians, police, and fire departments can provide an objective perspective on how the accident happened.
• Business records: Business records may help show that dangerous staff were kept on the job after safety issues arose, that a business failed to conduct proper background checks, or that it skipped necessary inspections. 
• Inspection reports: Trucking companies are required to maintain records for set periods of time, including of all inspections and maintenance work performed on their fleet. If the trucking company cannot produce these reports, it may indicate that it skipped necessary maintenance or inspections, which could have contributed to the accident.  
• Black boxes: Commercial vehicles carry electronic data recorders that record valuable information, such as speed, braking patterns, and distress signals. Passenger vehicles have smaller versions of these electronic devices. We can try to extract data from the vehicles involved in your case to help prove liability.
• Maintenance records: Maintenance records may reveal that one of the vehicles involved in the accident was not properly maintained or suffered a critical mechanical malfunction that contributed to the accident.
• Witness statements: Statements from neutral observers often carry immense weight when making an insurance claim because independent witnesses have nothing to gain by lying about the events.
• Video footage: Today, everything is recorded on video. Our lawyers may be able to track down surveillance cameras, dash cams, traffic cameras, social media videos, or body cam footage that recorded some of the events involved in the deadly accident. 
• Accident scene photos: Photos can help capture a moment in time, making it easier for accident reconstruction experts to piece together how the accident happened. 
• Wage loss statements: Pay stubs, letters from your loved one’s employer, and other wage loss statements can help show your loved one’s earnings, making it easier to calculate what the projected loss of financial support will mean for your family. 
• Medical records: Medical records can help establish the link between your loved one’s injuries and the accident. They can also provide proof of the financial losses your family experienced due to the fatal accident.
• Reports from expert witnesses: At Powers & Santola, LLP, we work with nationally recognized experts in various fields, including engineering, social science, economics, and medical experts. These witnesses can provide valuable reports that demonstrate fault and the extent of your financial losses. 

At Powers & Santola, LLP, our experienced lawyers know what evidence to look for and how best to present it.

A wrongful death lawsuit can seek the recovery of “fair and just compensation” for the pecuniary injuries that the distributees have sustained due to the death. These injuries generally include the loss of support, assistance, and possible inheritance. They do not include compensation for a survivor’s sorrow from the loss.

Damages are awarded “in proportion to the pecuniary injuries” suffered by the distributee. So, the amount awarded individually may depend on many factors, including the relationship to the decedent. For instance, a spouse may seek a recovery for the loss of the decedent’s services around the home, while a child may seek a recovery for the loss of a parent’s guidance.

An expert typically is called on to evaluate a case and provide an opinion on matters such as the loss of a decedent’s future earnings. Damages cannot be based on mere speculation.

Additionally, a wrongful death lawsuit may seek the recovery of:

• Reasonable medical expenses arising from the injury which led to the death
• Reasonable funeral expenses paid by the distributees
• Punitive damages (if the decedent could have recovered those damages if he or she had survived).

A settlement of the wrongful death claim must receive court approval. The amount of the settlement is placed in a trust account and then distributed. If a party is a minor, incompetent, incarcerated or suffers from a disability, a guardian ad litem may be appointed to protect the party’s interests.

Statute of Limitations for Wrongful Death Claims in New York

The statute of limitations is the time limit you have to file a lawsuit to preserve your legal rights. For most wrongful death cases in New York, you must file a lawsuit within two years of the date of death. If you do not file your case within this timeline and have not settled your case, you can forfeit your right to recover compensation and accountability through the civil justice system.

It’s important to know that statutes of limitations can vary based on various factors. You may have more or less time than the standard two years, depending on the circumstances surrounding your case. For example, if your case is against a government agency, you may have to provide notice of your claim within 90 days.Contact an experienced wrongful death lawyer at Powers & Santola to find out what the applicable statute of limitations for your case is.