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Wrongful Death FAQ

Wrongful Death Attorney New York & Long Island

If you believe you or your family may have a wrongful death case in New York City, the attorneys at Levine & Slavit, PLLC can help.

  1. What is a wrongful death case?

Wrongful death is a death that results from a wrongful act or from negligence, such as in a motor vehicle accident or as a result of medical malpractice. The death can serve as the basis for a civil action for damages.

In New York, a wrongful death action usually consists of two parts – a cause of action to recover for the conscious pain and suffering of the decedent, and a cause of action pursuant to the wrongful death statute set forth in section 5-4.1 et. seq. of the Estates, Powers, and Trusts Law (EPTL). This statute provides that the personal representative of the estate has the right to sue for pecuniary loss on behalf of the estate’s distributees.

  1. What types of damages are generally recoverable in a wrongful death lawsuit?

With respect to the cause of action for conscious pain and suffering, the law permits a decedent’s estate to recover compensatory damages to the same extent as the decedent could have recovered damages for conscious pain and suffering in a personal injury claim had the decedent survived.

Damages recoverable under the wrongful death statute are set forth in EPTL §5-4.3 and are limited to “fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the persons for whose benefit the action is brought.” Pecuniary injuries include loss of financial support to the decedent’s statutory distributees, funeral and medical expenses, and loss of parental guidance. Recovery for loss of parental guidance can be had even by adult children of the decedent.

  1. Can the decedent’s family recover damages for their emotional grief from the loss of their loved one?

Unfortunately, in New York the answer is “No.” Unlike a majority of states in the country, New York’s wrongful death statute does not allow recovery for the emotional grief of the surviving family. This has been the case since the law was enacted in 1847.

Needless to say, the law unfairly diminishes the recovery the family of a low-wage earner, a child, or an elderly person who died can have.

Although not an adequate substitute for compensation for emotional grief, the ability to recover for loss of parental guidance, even in the case of adult children, can serve as an important basis for a family to receive a substantial recovery for their loss.

  1. What are the time limitations for a wrongful death action?

Again, a distinction must be made between the cause of action for conscious pain and suffering and the statutory cause of action for wrongful death. The conscious pain and suffering action is subject to the same time limitations as would apply to a personal injury lawsuit brought by the decedent were the decedent alive. The general statute of limitations for negligence actions in New York is 3 years from the date of the malpractice. An action brought pursuant to the wrongful death statute must be commenced within 2 years of the date of death.

However, it is essential to bear in mind that the time limitations are shorter when the conscious pain and suffering action sounds in medical malpractice (2 ½ years from the date of the malpractice), and still considerably shorter when a municipality or public authority is the defendant (for just one example, the 90-day Notice of Claim prerequisite to suing).

The time limitations must be calculated separately for each cause of action. It is quite possible for a lawsuit to be timely under the wrongful death statute but untimely with respect to the action for conscious pain and suffering, and visa versa. In these situations recovery can only be had for the timely cause of action.

  1. What should I do if I believe I or my family has a wrongful death case?

Consideration must always be given to the deadlines to commence an action, especially when a municipality or public authority is involved. Thus it is important that legal counsel be consulted as soon as possible. Although in light of the trauma the death of a loved one brings it can understandably be difficult to even think about speaking with an attorney, courts do not have discretion to extend statutes of limitations.

A sensitive topic that arises is whether an autopsy should be performed. We certainly make no comment or judgment about anyone’s personal or religious beliefs regarding autopsies. Nonetheless, the ability to prove at trial the cause of the decedent’s death can often be the difference between having a viable case or not. This is common when medical malpractice is suspected.

Learn More about Wrongful Death

The lawyers at Levine & Slavit, PLLC stand ready to answer more specific questions regarding wrongful death law in New York City. Contact us for a free consultation.

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