Coping with the death of a loved one is extremely difficult in all circumstances but can feel even more devastating when you believe their death could have been avoided. Medical malpractice is one of the leading causes of preventable deaths in the United States.
If your loved one’s death occurred because of medical negligence, you may have the right to file a claim for wrongful death against the negligent party and receive substantial compensation. No monetary award will ever make up for the loss of a loved one, but finding justice may be a step toward healing and closure.
Medical malpractice laws are complicated, and the time for filing a claim is limited by your state’s statute of limitations. Contact Gerling Law to schedule an appointment with our experienced team.
What Is Medical Malpractice?
Medical professionals owe patients a reasonable and accepted duty of care that encompasses careful attention to treatment protocols and practices. Medical malpractice occurs when a hospital, doctor, or other health care professional, through a negligent act or omission, causes an injury to a patient. Under this legal theory, a victim or their family member can claim compensation for the damage to the patient.
There are three elements that must be present in order to bring a cause of action for medical malpractice.
A Violation of the Standard of Care
Certain medical standards are recognized as acceptable practice by prudent health care professionals when conducted under similar circumstances. This is the standard by which all actions are evaluated. A patient is owed the right to care consistent with these standards. If the standard has not been met, the actions may constitute medical negligence.
An Injury Was Caused by the Violation
In violating the standard of care, the healthcare professional must have also caused an injury that would not have occurred without their negligent action or omission. There are always risks and unknowns when it comes to medical care, therefore an unfavorable outcome on its own is not enough to assert malpractice. The plaintiff must demonstrate that the outcome would have been different if the standard of care was met.
The Injury Resulted in Significant Damages
For a case to be viable, the plaintiff must show that significant damages resulted from medical negligence. Death is certainly the most unfortunate and severe form of damage that could occur.
What Is Wrongful Death?
A wrongful death claim is used to compensate surviving family members for the losses they have suffered or will suffer as the result of a loved one’s death. Each state has different statutes governing who is eligible to file a wrongful death lawsuit.
According to Indiana law, a wrongful death claim involving a child must be filed by one or both parents or the child’s legal guardian. Unlike in many other states, an adult decedent’s family members are not permitted to file a wrongful death lawsuit. Instead, the personal representative (also referred to as the “executor”) must file on behalf of the deceased adult’s estate. Illinois wrongful death cases must also be brought by the personal representative of the state. Kentucky has similar laws asserting who can file a wrongful death claim, with a few exceptions that do not apply to medical malpractice.
What Kind of Damages Are Available for a Wrongful Death Case?
In the case of medical malpractice resulting in death, loved ones are often left with a financial burden to bear. The decedent may have accrued significant medical expenses that still have to be paid, along with funeral and burial expenses.
If the decedent was the primary financial provider, the family may have additional needs due to financial hardship. Possible economic and non-economic damages include:
- Funeral and burial expenses;
- Loss of decedent’s expected earning capacity;
- Loss of benefits such as medical insurance coverage or pension plans;
- Loss of inheritance;
- Cost of therapy;
- Loss of the care, protection, and guidance from the deceased;
- Loss of household services of the deceased;
- Loss of love and companionship; and
- Loss of consortium.
In extreme cases, a judge may decide that exemplary (also referred to as “punitive”) damages are necessary to ensure that the medical facility and staff responsible learn a lesson from the case and enact changes. This part of the hospital wrongful death settlement is reserved as punishment rather than to compensate the victims.
What is the Average Payout for Medical Negligence Resulting in Death?
Each medical negligence case is unique, and so is the potential payout for a wrongful death medical malpractice settlement. There are a number of factors that go into determining the average medical malpractice settlement resulting in death. The amount of compensation you receive for your wrongful death lawsuit will depend heavily on the circumstances of the case including:
- The nature of how the death occurred;
- Who is liable for the death;
- Their degree of responsibility for the death;
- Other factors contributing to death;
- The age of the deceased;
- Salary and earning potential of the deceased; and
- Financial dependence of family members.
In many cases, medical malpractice resulting in death settlement amounts increase in value if the healthcare facility is liable. It is not uncommon for liability to be shared by a healthcare professional and the healthcare facility. Hospitals generally have deeper pockets than individuals.
Caps On Medical Malpractice Settlements
Each state places its own cap on medical malpractice settlements. As of 2019, Indiana caps medical malpractice damages at $1.8 million. Doctors are liable for only $500,000, and anything beyond that amount is paid by the state Patient Compensation Funds (PCF) which is funded by a surcharge on insurance paid by physicians and hospitals.
Kentucky and Illinois do not cap the average payout for medical negligence resulting in death.
If you are filing a claim for medical malpractice resulting in death against the U.S. Department of Veterans Affairs (VA), the procedure is a little different. You must first file a medical malpractice claim under the Federal Tort Claims Act (FTCA). Caps on recovery are imposed using the state statute for private institutions.
Suffering From the Death of a Loved One Due to Medical Negligence?
The experienced team at Gerling Law understands that this is a very difficult time for you and your family. We have successfully represented clients in Indiana, Kentucky, and Illinois in wrongful death suits and other personal injury matters for over 50 years. The last thing you want to deal with is the complexities of your state’s legal system. Our dedicated attorneys provide compassionate, zealous legal representation to ensure that you receive the compensation you deserve. Contact us to schedule your case consultation today.
Gayle Gerling Pettinga
Born and raised in Evansville, Gayle is a respected, experienced lawyer and a valued community leader. She graduated near the top of her class at Indiana University’s prestigious Maurer School of Law. She’s practiced law with one of the largest firms in Indianapolis as well as one of the largest pharmaceutical companies in the world. And that means she knows how big law firms and big companies think and how they operate – and she will put that knowledge to work for you.
Gayle has received numerous awards and honors including Martindale-Hubbell — Peer Review Rated: AV®, American Institute of Personal Injury Attorneys 10 Best Attorneys in Indiana for Exceptional and Outstanding Client Service, and YWCA Evansville 100 Years, 100 Women Honoree, 2011.
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