Medical malpractice and wrongful death

Medical malpractice that results in death gives rise to two distinct causes of action: (1) a “survival action” medical malpractice claim for the victim’s personal pain and suffering prior to death, and (2) a “wrongful death” claim for the loss suffered by the victim’s spouse and next of kin after the victim’s death.

As discussed above, a medical malpractice claim is subject to a one year statute of limitations (with the possibility of a 180 day extension if a 180-day letter is properly served).  However, a wrongful death action is subject to a two year statute of limitations, and this is true even if the wrongful death comes about as the result of medical malpractice.  So, it is possible that a wrongful death action may still be available even if the underlying medical malpractice action is time-barred.

In addition, the Ohio Supreme Court has adopted a “discovery rule” that can extend the two year wrongful death statute of limitations.  Under the discovery rule, the two year period in which to file a lawsuit starts when the plaintiff discovers, or in the exercise of reasonable care should have discovered, that a wrongful death has occurred.  The start of the limitations period is delayed until triggered by a “cognizable event” that alerts the plaintiff of the potential for a wrongful death claim.  The discovery rule was adopted to prevent the unfairness that would occur if the statute of limitations were rigidly followed.  Such unfairness would exist in a wrongful death action where the victim's survivors are not immediately aware that a wrongful death has occurred.

In a wrongful death claim, the surviving children and other next of kin may recover compensation for (1) loss of support from the reasonably expected earning capacity of the decedent; (2) loss of services of the decedent; (3) loss of the society of the decedent, including loss of companionship, consortium, care, assistance, attention, protection, advice, guidance, counsel, instruction, training, and education; (4) loss of prospective inheritance; and (5) mental anguish.  A knowledgeable attorney will be able to assign a value to each of these components and maximize the monetary award in a given case.

 

Call 800.637.8170 to request a free copy of The Ohio Medical Malpractice Book and set up a free consultation with of our Toledo medical malpractice attorneys.