Wrongful Death Information Center

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Frequently Asked Questions about Wrongful Death

Q: What is the difference between a civil case and a criminal case against someone who caused a death?

A: A criminal case can only be brought by the government. The prosecutor makes a case against the person accused of a crime, seeking prison time or another punishment. The prosecutor must meet a higher standard of proof than in a civil case. A civil case can be filed by anyone whose private rights or civil rights have allegedly been violated by another party. When a private party files a civil lawsuit for wrongful death, the party is seeking monetary damages, compensation for the loss suffered. A civil trial for wrongful death, therefore, is very different from a criminal trial for murder or manslaughter.

Q: What if an unborn child dies?

A: In many states, the baby must be born alive for its death to be the subject of a wrongful death lawsuit. This is not always the case, however. In some states, the fetus must have been viable (able to live outside the mother's womb) even though it was not born; in other states, viability is not an issue. Because the law varies so much from state to state, it is wise to consult an attorney who knows the laws in your area.

Each state has its own time limit for bringing a legal action for wrongful death. Do not delay. Contact our firm today to schedule a consultation with an attorney.

Working with Families who have Lost a Loved One

The loss of a loved one is never easy to deal with, but it is made more difficult when it occurs because of another person's negligence. At the McClellan Law Firm, we limit our caseload to no more than 15 cases in order to be able to provide grieving families the help that they need to cope with their legal issues. We provide professional and dependable legal advice to families who have lost a loved in a wrongful death. Our team-oriented approach allows us to work with you to determine all your short and long-term needs and objectives. We understand that this is about more than money, it is about helping families find comfort when transitioning to a new phase of their lives. To learn more about how we can help you get the monetary damages your family deserves after the wrongful death of a loved one, contact our office in San Diego, California, for a free consultation.

Wrongful Death - An Overview

Losing a loved one is painful. Losing a loved one due to wrongful death can be even more difficult. If someone's wrongful actions caused injuries that resulted in your loved one's death, that is a wrongful death. At common law, there was no legal action that surviving family members could take. That changed, however, when governments began to make laws protecting survivors. Now, in every state in the US, the representative or heirs of a person lost to wrongful death may file a lawsuit for monetary damages. The laws, however, vary quite a bit from state to state, so consulting with an attorney from The McClellan Law Firm in San Diego, California, is advisable.

The main method courts have for measuring loss in wrongful death lawsuits is pecuniary damages — that is, the court must determine the proper compensation for the financial loss that the death has caused. Though this may seem harsh or cold, money damages are the remedy that civil courts have at their disposal. Thus, when the courts measure loss, the first thing most of them turn to is quantifiable data:

How much money did the deceased earn?
How much money did the deceased save?
How financially dependent were the survivors on the deceased?

The court will also take into consideration:

Funeral expenses
Medical expenses

The Physician-Patient Privilege in Wrongful Death Cases

The physician-patient privilege is designed to help each patient feel free to tell the doctor the whole truth about what the patient is experiencing; that way, the doctor will have the best information for diagnosing and treating the patient. This privilege can be very important for the relationship between the doctor and the patient. When a patient passes away, however, what happens to the privilege?

If you want to take legal action because your loved one suffered a wrongful death, you may have questions about the privacy of the medical records involved. For more information on physician-patient privilege, speak with an experienced attorney.

The Wrongful Death of a Child or an Elderly Person

No matter what the age of the loved one you have lost, the grief is powerful. The law, however, often takes age into account when it assesses your loss. Because your loved one cannot be replaced, the law is at a disadvantage to truly compensate you. Money is one measure that the legal system can objectively use to reflect what has been lost. For more information on how the law applies to the wrongful death of your child or elderly relative, contact an attorney.

Statutes of Limitations and the Discovery Rule

If you have experienced the loss of a loved one due to wrongful death, the last thing you may want to think about is how your legal rights are affected. The law surrounding wrongful death, however, allows legal action to be taken only for a limited period of time. When this period has elapsed, you will no longer have the option of filing a lawsuit. An attorney can answer your questions about how much time you have to take action.

Monetary Damages in Wrongful Death Cases

Legal actions for wrongful death can be very complex, especially when the harmful acts of several parties contributed to an individual's death. Some parties may settle the matter before the case goes to trial; others may see it all the way to a verdict. No matter who the defendant is, the amount and type of financial recovery the plaintiff can make depend on the law of the state in which the case takes place. Contact an attorney to discuss your legal rights.

Wrongful Death Resource Links

National Institute for Occupational Safety and Health (NIOSH)
This governmental agency, part of the Centers for Disease Control (CDC), provides comprehensive information on workplace safety and health.

Occupational Safety and Health Administration (OSHA)
OSHA, part of the US Department of Labor, protects US employees by proposing and enforcing workplace safety and health measures.

How to Deal with Grief
The Substance Abuse and Mental Health Services Administration (SAMHSA) discusses the feelings that accompany grief and how to manage them.

Environmental Health
The CDC offers numerous links to information on how environmental factors like hazardous waste, carbon monoxide and asbestos can affect your health.

Consumer Product Safety Commission (CPSC)
This governmental agency provides information on recalled, potentially dangerous products and offers safety tips for the home.

The McClellan Law Firm
1144 State Street
San Diego, California 92101
Tel: 619.231.0505
Fax: 619.544.0540
E-Mail the Firm

San Diego Business Litigation Lawyers | San Diego Personal Injury Lawyers | San Diego Auto Accident Attorneys
Telephone: 619.231.0505 | Fax: 619.544.0540

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The Southern California personal injury and business litigation attorneys at the McClellan Law Firm serve clients in San Diego, Chula Vista, National City, Eastlake, Bonita, Lemon Grove, La Mesa, El Cajon, Mission Valley, Ocean Beach, Pacific Beach, Point Loma, La Jolla, Clairmont, UTC, University City, Miramar, Poway, Julian, San Marcos, Escondido, Carlsbad, Del Mar, Solana Beach, Encinitas, Cardiff, Oceanside, Lucida, Little Italy, Lakeside, Alpine, Coronado, Vista, Rancho Santa Fe, Rancho Bernardo, Santee, Valley Center, Imperial Beach, Scripps Ranch, Temecula, Murrieta, Spring Valley, San Ysidro, San Diego County, East County, and throughout the state of California. We also accept attorney referrals and co-counsel arrangements in complex personal injury litigation throughout the United States.