Many people who have lost a loved one due to the negligence, recklessness, or intentional actions of another person do not realize that there are limitations on how much time a person has to bring a wrongful death case against the wrongdoer. It seems unfair that the law prevents justice if the victim’s family mourned just a little too long and did not realize that their rights were being lost, but this is often the case. All states have various deadlines in which the family or the decedent’s estate may file a legal action OR to resolve the matter through a negotiated settlement. It is critical to remember that if there has been no resolution and the two-year window rapidly is drawing to a close, a lawsuit will toll the running of the statute and must be filed to preserve the family’s rights.
Some of the most important limitations include the following:
- General wrongful death action – For most cases, the litigation must be commenced within two years of the date of death. However, a medical malpractice case may have a time period that runs from the time of the injury, rather than the death, if the cause of the injury is known;
- Extensions as the result of concealed negligence – In some states, wrongful death actions are subject to the discovery rule, where a person reasonably could have discovered that he had a cause of action. In cases where there were concealed problems with the medical treatment or prescription drugs, the cause of action does not accrue until a person could have discovered the causal relationship between the error or defect and the harm suffered;
- Longer limitations due to fraud – When the wrongdoer actively concealed the negligence that ultimately caused the death of a loved one, there are longer periods of time in place to bring a wrongful death action;
- Special circumstances – If there are extenuating circumstances that demonstrate that justice only will be done if the statute of limitations is extended, then the court may consider reasonable accommodations. Although this situation is rare, it may be applied if the accident that led to the death of the individual also resulted in the physical or mental incapacitation of the person who would otherwise have brought the legal action;
- Minor children – As with many applications of the law, there are special rules for minor children in many states. In some states, if the minor child has the right to bring a cause of action for the wrongful death of a loved one, then that right does not expire until two years after the child reaches 18 years of age, which is when the child has the legal capacity to bring the action on his own behalf. This means that a child who loses a parent at the age of 13 has until 20 years of age to bring legal action. However, a parent or legal guardian can bring the action on behalf of the child before that time. The sooner the action can be brought, the better because evidence begins to deteriorate as soon as the injury that led to death occurred. In addition, witnesses’ recollections of what happened may fade and become unreliable. If a parent or guardian does bring the wrongful death action on behalf of the child, then the court will appoint an ad litem, who is charged with determining that the settlement or jury award is in the child’s best interest.
The loss of a loved one may devastate the lives of those left behind, but it is important for the family members to take steps to preserve their rights as soon as possible.
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