Wrongful Death

A wrongful death is any death caused by another person or entity that is without any legal basis. It is the taking of a life by the intentional act of another person or by his or her negligent conduct.

A wrongful death claim is one grounded in tort law and is subject to, or governed by, the statutes of the state where the death occurred. The states vary widely in how wrongful death actions are brought including who may bring such actions and what damages may be awarded and to whom.

Most wrongful death actions are the result of the negligent conduct of another person, such as in an auto accident. Death claims can also be brought if it was caused by a defective product or by medical errors such as anesthesia accidents. In these cases, different standards regarding evidence and the various elements pertaining to the requisite proof will apply.

There are many practice areas that can include wrongful death actions. These include auto accidents, drug cases, toxic tort actions, medical malpractice, product liability, workplace accidents, and others. Here are three common types of wrongful death claims:

Auto Accidents

In these cases, the principles of negligence law generally govern. A driver has a duty to exercise reasonable care in operating a motor vehicle. The driver’s failure to exercise the care ordinarily expected of a reasonable person under similar circumstances, such as driving too fast for road conditions, constitutes a breach of that duty. If the breach led to the death of a person, then a claim may be made.

Product Liability

Designers and manufacturers of products are held to certain standards. A defective product that causes a death may result in an actionable claim under strict liability, meaning that the plaintiff does not have to prove negligence and need only prove damages. If the product was defectively designed, expert testimony is needed to demonstrate that a safer product could have been designed and that the technology was available. Examples include defective baby booster seats, exploding gas tanks, exploding tires, or a failure to provide adequate safeguards.

Medical Malpractice

Physicians are held to the standard of a reasonably competent medical professional in the same area of practice. Their deviation from that standard can render them liable in a wrongful death action. Nurses are also held to a professional standard. A claim can also be brought against the medical facility or hospital where the death or injury that led to the death occurred if they hired the staff whose negligent conduct or practices led to the fatality.

Anesthesia Accidents

These type of accidents include failure to provide sufficient oxygen to a patient, incorrect intubations or lack of patient monitoring leading to hypoventilation. If negligent conduct occurred that led to a fatality, then these cases are defined as medical malpractice claims.

Anesthesia accidents can also occur from faulty equipment or an ill-trained staff. The medical staff may not have properly accounted for a patient’s allergies or interactions with certain drugs, or may have introduced the medication into a patient’s system too quickly or administered too much, leading to an overdose.

Anesthesia is administered with drugs intravenously or topically. Patients are either under general anesthesia, deep sedation, moderate sedation, or minimal sedation.

Errors that occur can lead to death as well as brain damage, paralysis, cardiac arrest, organ damage, coma or skin disorders.

If the equipment that delivered the anesthesia or monitored the patient proves to be faulty, the company that manufactured the product can also be held accountable under product liability law.


Damages in wrongful death cases are governed by the statutes of each state.

Compensatory damages can be awarded, which include the following:

  • Medical expenses
  • Funeral and burial expenses
  • Lost earnings--These are determined usually by an economist who looks at the life expectancy of the individual, his or her work life expectancy, any benefits that were being accrued, and outside sources of income. For a nonworking spouse, the expert can determine the value of his or her child care and housekeeping duties. The decedent’s health can be a factor in these calculations.
  • Loss of consortium or loss of love, affection or companionship--The character of the decedent and the relationship between the deceased and plaintiff are explored in this area of damages.

Steps to Take

If a loved one has died as a result of medical malpractice, auto accident, or some other incident in which you suspect there was negligent conduct that led to the fatality, you should immediately contact a wrongful death attorney. These cases are often difficult with complex sets of facts that only an experienced wrongful death attorney can handle.

Contact the Law Offices of Stephen S. Weinstein, P.C.
for your free personal consultation today.

Motor Vehicle Accidents
Premises Liability
Product Liability
Medical Malpractice