New York’s wrongful death statute gives the executor of a decedent’s estate or their personal representative the right to pursue a wrongful death claim against a party that caused their death due to their wrongful act, neglect, or default that would have made that party liable had the decedent survived and had the right to file a personal injury case. If you believe you have a viable legal claim, you should know what to do to maximize your chance of recovery. Just as important is knowing what NOT to do. Here is Powers & Santola, LLP’s list of what not to do if you believe you have a viable New York wrongful death case:
Don’t Depend on Others to Report the Death
The first step to begin the official legal process of pursuing a wrongful death claim is to ensure the death is reported to the proper authorities. For example, if your loved one was involved in a car accident that eventually caused their death, you should report it to the police. If the death was due to medical malpractice, you should report it to the hospital or medical provider. If they died in a construction accident, you should report the death to their employer, the construction site owner, and the New York Department of Labor.
If your loved one died under suspicious circumstances or their death is in dispute, you may need to request an autopsy so that their official cause of death is reported and can support your legal claim.
Don’t Delay
You are likely dealing with grief and difficulties stemming from an unexpected death in the family. Still, New York has strict legal timelines that require you to take legal action before the deadline expires. Additionally, valuable evidence could be lost or destroyed if you don’t take prompt action.
A wrongful death claim may involve a long process, so you might need to get started immediately. This legal process may involve:
- An initial consultation in which you talk to an experienced lawyer about the viability of your case
- An investigation in which your lawyer and their legal team gather evidence, such as accident reports, medical records, and witness statements
- An initial claim with the insurance company
- The filing of a wrongful death lawsuit, a formal complaint you submit in civil court
- Discovery, in which your wrongful death lawyers request information from the defendant about the case, and the defendant requests information about your legal claim
- Settlement negotiations in which you try to reach an agreement out of court
- A trial if your case has not otherwise settled
Due to the extensive legal process involved in wrongful death cases, it’s vital that you take prompt action.
Don’t Assume You Can’t File a Claim
Some states limit who can file a wrongful death claim to the surviving spouse, child, or estate representative. In New York, the personal representative must file this type of legal action, but the recoverable damages go to the distributees of the estate. This means that various relatives could stand to recover damages in wrongful death cases, including:
- The surviving spouse
- Children
- Grandchildren
- Parents
- Siblings
- Aunts and uncles
- Cousins
While these various parties could benefit from the proceeds of a wrongful death claim, wrongful death cases in New York provide payment for pecuniary damages only, so these relatives must be able to show how the death has adversely affected them economically.
Don’t Talk to the Insurance Company
While you might think that insurance companies would treat you fairly after dealing with such a catastrophic experience, these for-profit companies are only interested in protecting their wealth. They are in the business of taking advantage of accident victims. They might offer a low settlement or deny your insurance claim entirely. They may try to use anything you say in a recorded statement against you or follow you on social media to try to discredit your claims. Due to these risks, it’s usually best to refer insurance adjusters to wrongful death attorneys instead of dealing with them yourself.
Don’t Forget the Burden of Proof
When you pursue any type of personal injury claim, you have the burden of proof to show that the defendant committed all elements of the claim by the preponderance of the evidence. This generally means that it is more likely than not that:
- The defendant owed your loved one a duty of care, such as to drive according to the rules of the road or to provide medical treatment consistent with the standard of care.
- The defendant breached the duty of care, such as violating the rules of the road or deviating from the accepted standard of care.
- The breach of duty caused the fatal injury, which is demonstrated by evidence, such as expert testimony.
- You suffered economic losses, such as burial expenses or loss of financial support.
A skilled attorney can help explain what you must show and how to show it.
Don’t Forget the Evidence
When you’re grieving the death of a loved one, it can be difficult to focus on the details of a legal case. But because you have the burden of proof, it’s important that you take steps to preserve crucial evidence in your case, such as:
- The death certificate: The death certificate provides the official manner of death. This can provide critical evidence needed to support your legal claim.
- The autopsy report: If an autopsy report was performed, you should also request a copy of it. It can provide additional details and critical information about how and why the death occurred.
- Police reports: The accident report may provide details about how the accident occurred, factors that contributed to it, and any witnesses who observed it.
- Witness statements: Statements from credible witnesses can help support your case. These witnesses may be able to testify about the events they observed leading up to the accident.
- Photos or videos: Photos or videos of the accident scene or the factors contributing to it can provide additional support for your case.
- Medical records: Medical records may be able to connect the accident and your loved one’s death. They are particularly important in cases involving medical malpractice.
- Loss statements: You may have check stubs, retirement benefit statements, and other financial documentation that can evidence your economic losses.
Don’t Underestimate the Value of Your Damages
In the midst of your grief, you might not be focused on the value of the economic harm you’ve suffered due to your loved one’s unexpected death. However, wrongful death claims in New York consider the pecuniary losses families suffer, which can often be significant and might provide financial compensation for the following:
- Medical expenses, nursing, and other expenses incurred due to the injury that caused the death
- Reasonable funeral expenses
- Burial expenses
- Loss of financial support
- Loss of employment benefits
- Loss of inheritance
- Interest
Unlike other states that provide damages for grief, loss of companionship, mental anguish, and other non-economic damages, New York’s wrongful death laws focus on the financial losses you’ve suffered, so it’s important that you’re able to document these injuries. Keep all medical bills, invoices, and receipts that show any amounts you or other family members have incurred as a result of the death.
New York law also allows family members to pursue punitive damages in cases where they would have been recovered had the victim lived.
Damages are distributed to the individuals eligible to recover them under intestate law in proportion to their pecuniary loss. However, if there is a surviving spouse and parents but no children or grandchildren, the parents recover in proportion to their pecuniary loss.
Don’t Forget About the Possibility of a Survivorship Claim
In addition to a wrongful death claim, the situation may provide the legal basis for a survivorship claim. This is a distinct legal action that the personal representative can pursue to seek compensation for the losses the accident victim suffered immediately after the accident until their death. Damages that could be available in survivorship claims might include:
- Medical expenses
- Lost income
- Conscious pain and suffering
This type of legal claim can help offset the losses to the decedent’s estate.
Don’t Post Anything on Social Media or Talk to News Outlets
Statistics indicate that more than five billion people use social media. Even though it’s reasonable that you might want to rely on your social network for added support during this difficult time, try not to post anything publicly about your case, the cause of death, or other issues related to your loved one’s passing. Insurance companies and defense attorneys may try to use your posts to find inconsistencies or to discredit you. For the same reason, you should also avoid talking to news outlets about the tragic accident.
Don’t Procrastinate or Postpone Your Claim
New York’s statute of limitations for a wrongful death case is generally two years from the decedent’s death. The personal representative is generally required to file a lawsuit by the second anniversary of the death if the case has not otherwise been settled before this point to preserve the family’s right to recover compensation through a civil action.
There are certain exceptions to this deadline, such as if the cause of the death was a crime and a criminal case has been commenced. In this situation, the personal representative has at least one year from the termination of the criminal case to file the civil lawsuit. Personal injury lawyers can examine the circumstances surrounding your case and explain the time limits that apply.
Don’t Try to Go Through the Process Alone
You don’t have to go through the legal process alone following a fatal accident. A skilled attorney from the law firm of Powers & Santola, LLP can help with your civil action by:
- Investigating your case to identify the responsible party and all sources of compensation
- Discussing the tragic accident with you and the financial burden the premature death has had on you and your family
- Identifying all economic losses and types of damages your family is eligible to recover by filing a civil claim
- Determining if a survivorship action is an option and all additional damages you can seek
- Gathering strong evidence and working with expert witnesses to further strengthen your claim
- Filing legal paperwork and naming the negligent party as the defendant in a civil lawsuit
- Filing a notice of claim if the civil action is against a government entity
- Seeking to hold the liable party accountable for your loved one’s fatal injuries
- Assisting you in your fight for justice
- Seeking fair compensation through a settlement or lawsuit
When someone else’s negligent actions led to your loved one’s death, filing a wrongful death claim can help you feel a sense of justice. We are here to help you in your pursuit of justice and to seek maximum compensation for your family.
At Powers & Santola, LLP, we have recovered hundreds of millions of dollars for clients in wrongful death cases. We understand the financial strain that a premature death can have on a family and the difference a wrongful death award can make. Six of our attorneys have been recognized as “Best Lawyers in America” and “Super Lawyers” based on factors such as peer review and professional achievement. U.S. News & World Report/ Best Lawyers has rated Powers & Santola, LLP as one of the country’s “Best Law Firms.” Contact us today for a free legal consultation to learn more about your legal rights and how we can help you.
If you have recently lost a loved one and want to pursue a wrongful death action to seek justice and accountability for the tremendous loss you’re experiencing, the wrongful death and personal injury attorneys at Powers & Santola, LLP can help.
