When you lose a loved one for any reason, it can be a traumatic event and it will take time to come to terms with it. When that death is caused by a traumatic brain injury (TBI) or spinal cord injury (SCI) that is the result of someone else’s negligence or deliberate wrongdoing, you may be thrown into even more emotional turmoil. While it may be the last thing you want to think about right now, California law allows you to file a wrongful death lawsuit seeking compensation for the economic and non-economic damages incurred by your loved one’s death. Additionally, you can file a wrongful death lawsuit with a survival action, whether there is a criminal case in progress or not. At Schneiderman Trial Attorneys, one of our experienced TBI wrongful death attorneys can review your case during a free consultation in our San Diego office and may be able to advise you on how to proceed with your case.
A wrongful death claim allows the family to be compensated for financial and emotional losses associated with the death of their loved one. A survival action allows the deceased individual’s heirs to sue on behalf of the deceased’s estate for claims unrelated to the death and for which the deceased could have filed a lawsuit if they had survived, and/or claims for the injury which caused the deceased to die if they survived for a short period after sustaining the injuries.
While wrongful death claims can only be filed by specific loved ones, survival actions can be filed by the decedent’s personal representative or successor in interest, who may be a close friend, member of the family, or someone else the decedent has named in their will. Survival actions may also ask for punitive damages. The statute of limitations is two years from the date of the wrongful action or six months after the death.
Statistically, wrongful death claims often result in higher verdicts or settlements, mainly because they consider the long-term impact on the deceased’s family. However, survival actions can be coupled with wrongful death actions, so individuals may wish to explore both options with their attorney before deciding to move forward with just a wrongful death claim.
Any wrongful death attorney with experience in TBI or SCI-related deaths can explain that these claims are more complex than the typical personal injury claim. The first step in a successful wrongful death claim is proving that your loved one’s death is the result of someone else’s wrongdoing or negligence. This requires your attorney, should you choose to hire one, to perform an in-depth investigation that goes over all the details of your loved one’s injury and death.
Additionally, only specific individuals are eligible to file a wrongful death claim under California law. In short, to file a wrongful death suit and seek compensation, you must be the spouse or domestic partner of the decedent (the deceased individual), financially dependent on the decedent (such as a child or stepchild), or the parents or siblings of the decedent if there is no surviving spouse or offspring.
California’s statute of limitations also only allows two years from the date of the death to file a wrongful death claim. However, if the TBI or SCI or the death is due to medical malpractice, the statute of limitations is reduced to the earlier of either one year from the death or three years after the malpractice occurred. This tight deadline means you may want to consult with an attorney sooner rather than later, as it can take time to investigate the claim, gather evidence, and negotiate or litigate the claim.
The first step in successfully proving a wrongful death claim is demonstrating that the other party’s negligent, reckless, or intentional behavior caused your loved one’s fatal injuries. This means you and your attorney must be able to put forth evidence that if not for the other party’s wrongful behavior, your loved one would not have been injured, and thus, would not have died.
You must then prove the damages you are seeking compensation for. This is done with evidence such as medical bills, receipts, income records, tax returns, pay stubs, and assessments of potential future earnings. Additional evidence in wrongful death claims includes invoices or receipts for burial and funeral expenses, proof of insurance coverage and policy limits for any insurance policies that paid any expenses related to the injury or the funeral or burial.
Perhaps the biggest struggle TBI and SCI survivors and their families face is the lack of information regarding their injury, how to cope with it, and how to begin rebuilding their lives. Once a survivor leaves rehab, they may feel like they are on their own. Caregivers are impacted just as much, with caregiving quickly becoming a full-time job that puts marriages, careers, and more on hold. The lasting effects of these injuries can permanently alter family dynamics as well.
Recovery will likely be a lifelong journey as you learn to manage tasks and activities that were once second-nature. Even when physical, speech, or other therapies help, it may take thousands of dollars and many years to recover from a TBI or SCI fully, if a full recovery is even possible.
When you file a claim for wrongful death as a result of a traumatic brain injury, you and/or your attorney will request specific economic and non-economic damages. Each category of damages relates to the losses incurred as a result of the loss of your loved one. These damages include:
You may also ask for other economic and non-economic damages, such as pain and suffering, as advised by an attorney based on your circumstances.
Traumatic brain injuries and spinal cord injuries are two of the leading catastrophic injuries that can lead to wrongful death. The severe trauma of a TBI can impair essential functions, leading to fatal outcomes, and the spinal cord damage and potential paralysis can cause life-threatening complications in SCIs. Understanding how these injuries lead to wrongful death claims can help families determine their next steps.
The Brain Trauma Foundation reports that every year, 2.5 million people suffer traumatic brain injuries, and 50,000 of those injuries result in death. Some deaths may be immediately upon sustaining the TBI, while others happen later. Regardless of when these deaths occur, they can be wrongful deaths if the TBI was the result of:
These impairments do not affect just the survivor, but the caregivers as well. Survivors may be frustrated by their disabilities and the new limits they face, while caregivers struggle with the loss of the loved one they once knew and the relationship they once had. In addition to the typical medical expenses and lost wages, these permanent effects are a significant reason to seek compensation from liable parties when you or someone you love has suffered a TBI or SCI.
The National Spinal Cord Injury Statistical Center estimates approximately 296,000 people are living with SCIs in the United States. The life expectancy of an individual with an SCI is much lower than that of individuals without one. Pneumonia and septicemia are the two leading causes of death in people with spinal cord injuries, with mortality rates for cancer, stroke, heart disease, arterial diseases, pulmonary embolus and other causes of death declining. However, other causes such as endocrine, metabolic, and nutritional diseases, accidents, musculoskeletal disorders, and mental disorders are rising. When a spinal cord injury is the direct cause of death, the parties responsible for causing the injury may be held legally liable. However, sometimes the individual does not die due to the SCI, but due to the complications that arise from it, such as septicemia, pressure ulcers, or degenerative diseases that further damage the spinal cord. In these cases, the parties responsible for the SCI may still be held liable for wrongful death, though families will likely need to consult with a wrongful death attorney to review the details and learn more.
