When a healthcare provider like a doctor, nurse, or aide, is negligent–sometimes referred to as “medical malpractice” when it is a doctor–patients can be injured. The patients have a claim for medical negligence.
When those injuries lead to the patient’s death, there is a second claim, called “wrongful death,” that the patient’s family now has. This wrongful death lawsuit is to recover for the next-of-kin’s suffering, including grief and mental anguish.
What Is Wrongful Death?
Losing a loved one is a painful experience. It is never something that a person should endure alone. Even when death occurs naturally because of old age it is painful. Under normal circumstances, loves ones have an opportunity to say their goodbyes, make peace with their loves ones, and resolve any underlying conflicts or resentments. When a loved one’s death is traumatic, painful, premature, and preventable, the scars left are that much deeper.
Many people have heard the term “wrongful death.” It is termed “wrongful” because another person or company caused a person’s death through a needlessly dangerous act. A wrongful death claim is a lawsuit usually brought on behalf of the family for the death of their loved one. The family members who have been injured, either financially or emotionally, are called beneficiaries.
While no amount of monetary compensation can ever replace a loved one, being financially secure in your future and knowing that wrongdoers have been held accountable for their misconduct can bring a great sense of security and closure.
Wrongful death lawsuits can be complicated, and the laws for wrongful death vary by state. You need the insight and guidance of a wrongful death lawyer with a track record of success.
What Is The Difference Between Wrongful Death Lawsuit And A Normal Medical Or Nursing Home Lawsuit?
An Ohio wrongful death claim is brought for the benefit of the deceased person’s family members. A wrongful death claim is different from the claim the injured person has—even though they’ve died—for medical malpractice or nursing home abuse. The person killed still has a claim, called a “survivorship” claim because it survives their death.
A survivorship claim is a personal injury claim for the pain, suffering, and financial expenses a person has experienced before death. This is the same legal claim the person had before they died (or, would have if they did not die). The claim itself survives the person’s death and becomes an asset of the estate.
The survivor claim can be brought after death by a personal representative of the estate.
An Ohio wrongful death claim is different. The Ohio wrongful death claim does not exist until a person dies. At the moment a person dies, a new claim exists, called a wrongful death claim.
The wrongful death claim does not provide compensation for injuries the deceased person experienced before death. Rather, the wrongful death claim provides compensation for the deceased person’s family members for their pain and suffering because of the wrongful death.
Wrongful death and survivor claims can, and frequently are, pursued together in a single lawsuit.
What Do I Have To Prove In A Wrongful Death Claim?
All wrongful death claims have 4 elements that must be proven:
- The Defendant had a duty of care he owed to the deceased
- The Defendant breached that duty of care by needlessly endangering the deceased
- The Defendant’s wrongful conduct caused the death
- The death caused harm to the surviving family members
It is the jury and no one else (not the judge or insurance adjustor) who gets to decide if you have proven these 4 elements.
Duty of Care
What is a duty of care? A duty of care is a legal obligation to do something or refrain from doing something under a particular set of circumstances.
Every person has a duty to avoid carelessly injuring another person. The examples are nearly endless, but below are a few examples of the legal duties that exist:
- Doctors owe a duty of care to their patients (for example, medical doctors owe a duty to act as other physicians of general competence would under the same scenario, whether it involves performing surgery, delivering a baby, or reading a CT scan, etc.)
- Nursing homes owe a duty of care to their residents (for example, nursing homes are required to make sure that they have appropriate staff to care for their residents, including making sure those staff members are appropriately trained, equipped, and supervised).
- Semi-truck drivers owe a duty of care to pedestrians, passengers, and other motorists (for example, a semi-truck driver and a trucking company have a duty to follow federal and state transportation regulations concerning logging hours, truck safety inspections, load limits, etc.)
- Mechanics owe a duty of care to their customers (for example, automotive mechanics have a duty to put tires on cars correctly or fix breaks appropriately to avoid endangering drivers)
- Drivers owe a duty of care to pedestrians, passengers, and other motorists (for example, motorists have a duty to adhere to the rules of the road, including abiding by posted speed limits, following traffic signals, maintaining a safe and clear distance from the motorist ahead of them to avoid rear ending their vehicle, and watching for pedestrians)
- Store owners owe a duty of care to their customers (for example, grocery store owners have a duty to keep their floors dry and remove or warn of any hazards that can cause injury)
- Homeowners owe a duty of care to their guests (for example, a homeowner has a duty to warn his guests of known or concealed dangers on the property)
These are only a short sample of some of the potential duties of care that are owed to members of the public. The list could go on and on.
When it is all said and done, you must prove that the defendant acted unreasonably, which is to say that the defendant was negligent.
Breach of Duty of Care
If someone fails to meet their legal obligation — the duty of care — then they are deemed to have been negligent. Proving that the defendant was negligent is the job of an experienced attorney based upon all the available evidence. The jury will decide if the defendant needlessly endangered your loved one by engaging in unreasonable conduct.
If there is no proof that the other party was negligent, then there is no lawsuit no matter how significant the injuries or damages.
The Breach of the Duty of Care Caused Death
To prove wrongful death, you must prove elements 1 and 2 (negligence), and you must also prove that the negligence caused your loved one’s death. Depending on the nature of the case, this may be a very straightforward issue or a very complicated one.
For example, if a driver strikes a pedestrian with his car and the pedestrian is pronounced dead shortly after, it is common sense that the collision caused the pedestrian’s death.
Similarly, if a pharmacist dispenses the wrong medication and a patient dies due to an allergic reaction to that medication, there will be little dispute that the pharmacist’s negligence caused the death.
In other situations, however, it is more difficult to prove a causal link between the negligence and the death.
For example, if a doctor delays diagnosing a patient’s severe cough as lung cancer, there may be a dispute about the development of the cancer at the time the physician should have diagnosed it and whether diagnosing the cancer earlier would have made any difference to the patient’s overall prognosis.
Under these circumstances experts are consulted and retained to determine what difference earlier intervention would have made.
These experts, along with experienced wrongful death attorneys, help to prove causation.
Damages Caused By The Death
Losing a loved one is one of the most horrendous things that any family can endure. That much is obvious. But the law requires not only that the jury recognize that the loss is tremendous, but also requires that the jury assign a monetary value to compensate the family for that loss. This is not something that jurors are accustomed to doing in their everyday lives.
In a wrongful death lawsuit, the lawyer has the task of assigning a reasonable dollar value for all the physical, financial, and emotional consequences to all the beneficiaries of the estate that were caused by the at-fault person’s negligence.
While everyone would prefer to bring the deceased person back to life, that is not reality, and each family member has been harmed in his or her own unique way.
Our job as wrongful death lawyers is to calculate the amount of money that is needed to compensate each beneficiary for his or her loss. That is what justice requires.
Some of these calculations are simpler than others. As described below, the beneficiaries are entitled to numerous categories of damages, both financial and emotional. Determining the lost future wages of a breadwinner and conveying that to a jury is relatively simple. Articulating a dollar amount needed to compensate a child or a widow for the death of a husband or mother can be far more challenging.
Therefore, we as wrongful death lawyers consult the most experienced and renowned experts who can assist with these calculations and offer expert testimony to jurors.
These experts frequently include medical experts, economists, vocational experts, and grief counselors who have examined the beneficiaries.
What Are the Types of Wrongful Death Claims In Ohio?
In many ways, every time a legal claim could be brought for a personal injury action, a wrongful death claim could be initiated if the wrongful conduct caused the person to die.
Common scenarios that result in wrongful death lawsuits include the following:
- Medical Malpractice, such as:
- Injuries that occur during birth;
- Negligence that occurs before, during, or after surgery;
- Negligence that occurs in the Emergency Department of a hospital;
- Death caused by wrong diagnosis, misdiagnosis, or delayed diagnosis;
- Medication errors
- Nursing Home Negligence, Assisted Living Negligence, or Elder Abuse;
- Truck, car, or motorcycle crashes;
- Pedestrians or bicyclists struck by cars;
- Defective products;
- Hazing at fraternities or sororities on college campuses;
- Building and house fires
- Reckless or intentional conduct, including
- Murder
- Drunk driving
- Assault
Proving Death Was “Wrongful”
To pursue a lawsuit for injuries, including death, you must prove that the injuries were caused by a wrongful act.
If, for example, a patient died during surgery but the surgeon did everything appropriately, then there would be no claim, even though a patient died. This is true for any type of lawsuit where physical or emotional injuries are being claimed.
The person suing always has the burden of proving that the injuries were caused by someone’s wrongdoing.
Most wrongful death claims are brought because of someone’s negligence. Negligence is another way of saying that a person acted unreasonably or carelessly.
A person is negligent if he or she fails to exercise the amount of care that a reasonably careful person would under the same circumstances. Proving negligence can range from very simple, such as semi-truck that rear-ends a car stopped at a red light, to complex, such as a failure to properly diagnose or treat a serious medical condition.
If that negligence caused someone’s death, then you have a wrongful death claim.
Standard of Proof in Wrongful Death Claims
Most people are familiar with the burden of proof that is used in criminal law, which is the “beyond a reasonable doubt” standard. This is a very high standard, as it should be since if found guilty the defendant’s freedom is potentially eliminated and he is sent to prison.
Wrongful death claims are “civil” as opposed to “criminal” claims.
For most civil claims, the burden of proof is called a “preponderance” of the evidence. A preponderance basically means that some thing or fact is more likely to be true than false.
Another way to describe this concept of “preponderance” is that you must prove that it is at least 51% likely that the other side did what you are claiming they did.
Another common way to illustrate this concept is by imagining the scales of justice.
Imagine that all the evidence is gathered. The evidence is placed in the scale on the left for the plaintiff (the person bringing the lawsuit), and the evidence is placed in the scale on the right for the defendant (the person or company being sued). If the evidence in the scale on the left is ever so slightly greater than the evidence in the scale on the right, then the plaintiff wins.
What Damages Are Recoverable in A Wrongful Death Claim?
Ohio law provides several categories of damages that can be recovered in a wrongful death lawsuit. There damages are:
Funeral and Burial Expenses
Family members may recover the reasonable amount of money spent for funeral and burial expenses.
Loss of Future Wages
Ohio law allows family members to recover the loss of support from the reasonably expected earning capacity of their loved one. This includes all future wages, as well as fringe benefits, that would have been provided had the family member not died.
For example, if a person died when he was forty years old and intended to work until the age of 65, the surviving spouse is entitled to recover the lost 25 years of future income, including reasonably expected raises.
In addition, if the surviving spouse is now required to purchase private insurance and other items that were included as benefits of employment, the surviving spouse is entitled to monetary compensation to offset the difference.
Loss Of Services Of The Deceased
Family members may recover monetary compensation for the loss of services a loved one would have provided had he or she not died.
While it may not seem intuitive while the loved one is alive, many of the services spouses and parents provide have a real-world monetary value. Cooking, cleaning, yard work, home repairs, childcare, and many other tasks that we naturally do as part of a family may go unfulfilled when a loved one is suddenly removed from the family unit.
In a wrongful death case, beneficiaries can recover the market value for those lost services.
Loss of Inheritance or Pension
Like a beneficiary’s ability to recover for loss of support and future wages, Ohio law allows for the recovery of any loss of inheritance, including diminishment of a pension or other retirement fund, that was reasonably expected.
Loss of Society and Relationship
The most profound harm experienced by the death of a loved one is their absence from our daily lives.
Through our many trials and countless hours spent with family members, we have come to truly appreciate that each family member fills a unique role within that family.
While one person may be the individual that everyone goes to for counsel about their daily, relationship, or work issues, another family member may be the planner who is also preparing the family for the next family reunion, birthday, or other event, and another family member may be the humorous one who puts everyone at ease regardless of the occasion.
When that person is removed from the family, a void is left as that role goes unfulfilled. The family is frequently in turmoil as other members of the family attempt to fulfill that now vacant role.
The law allows family members to recover for these harms under what it calls the “loss of society,” which is defined broadly to include all the following:
- Loss of companionship
- Loss of consortium
- Loss of care
- Loss of assistance
- Loss of attention
- Loss of protection
- Loss of advice
- Loss of guidance
- Loss of counsel
- Loss of instruction
- Loss of training and
- Loss of education
These categories of harm include all the features that make our day-to-day relationships and experiences with our love ones special.
These measures of damages do not include the grief, anxiety, and depression. Those are dealt with separately under the law.
Mental Anguish And Grief
It is difficult to quantify in monetary terms the mental anguish and grief that is caused by the death of a loved one, but that is exactly our job as wrongful death attorneys. The law permits monetary compensation for the mental anguish and grief that is caused by a loved one’s death.
The amount of mental anguish and grief is different for each family member. If approached properly, each family member’s mental anguish and grief should be understood and presented to the jury uniquely and individually.
The amount of anguish and grief may be influenced by:
- the closeness of the relationship at the time of death or whether a family member died before attempts could be made to heal prior wounds;
- the traumatic nature of the death;
- whether the family member was present to observe any portion of the death or the immediate aftermath;
- the age of the victim; and
- whether the grieving family member is a son or daughter, mother or father, or sibling.
Grief and bereavement is complex, and it is important to seek the assistance of an experienced grief counselor early in the process to help build coping mechanisms to deal with the loss.
Understanding a client’s grief, anguish, and loss of relationship takes a tremendous amount of time and trust between lawyer and client. As wrongful death attorneys, there is no greater way to build this trust than simply spending time with our clients.
What If My Deceased Loved One Was Partially At Fault?
Ohio is what is called a “modified comparative negligence” state. Comparative negligence allows for a person to recover damages as reduced by the person’s own percentage of negligence.
In Ohio, if a party is more than 50 percent at fault, recovery is not allowed. It is the jury who decides whether a deceased person was negligent, and if so, what percentage of the total negligence should be attributed to the deceased individual.
For example, if a jury awarded $1 million dollars and finds that the deceased person was 25% at fault and the defendant was 75% at fault, the verdict would be reduced to $750,000 (1 million dollars reduced by 25%).
If, however, the jury found that both the decedent and the defendant were 50% responsible, then the verdict would be reduced from 1 million dollars to $0.
How Long Do I Have To File A Wrongful Death Claim?
The general time limitation for pursuing a wrongful death claim is two years from the date of death.
It is important to understand that survivorship claims (which the deceased person had at the time of death) and wrongful death claims (which belong to the beneficiaries) may have different limitation periods for suing.
For example, a medical malpractice claim has a one-year limitation for bringing a lawsuit. However, if the same medical malpractice causes the loved one’s death, there may be two years to bring the wrongful death lawsuit for the beneficiaries.
An exception to the two-year statute of limitation for a wrongful death claim can be if person at fault dies. Under some circumstances, it is necessary to bring a claim against the negligent person’s estate within 6 months of his or her death or risk being prevented from bringing the claim forever.
For a host of reasons, including determining the exact time limitation for bringing all claims, it is important that you speak with an experienced wrongful death attorney as soon as possible. Bringing a wrongful death lawsuit takes time.
The estate must be opened, a representative needs to be appointed, medical records and other documents need to be requested, and the case must be investigated.
Who Actually Sues For A Wrongful Death Claim
The deceased person cannot file his own lawsuit. Ohio law has a process where all beneficiaries are represented in a single wrongful death lawsuit through the creation of an estate.
Although each surviving member of a decedent’s immediate family may be entitled to receive monetary compensation, there is only one cause of action for the recovery of that compensation under Ohio’s wrongful death statute.
Opening An Estate
The actual lawsuit is brought in the name of the representative of the estate for the exclusive benefit of the surviving spouse, children, parents, and other next-of-kin.
The estate is created by filing certain paperwork in the probate court. The “estate” is nothing more than a legal process where the probate court oversees the business of the deceased (including where money is being sent and how or if debts are being paid) and the wrongful death claim that belongs to the family members.
The probate court will then issue paperwork entitling a specific person to serve as the representative of the estate.
The individual appointed by the probate court is the personal representative of the estate. The personal representative is then required to act in the best interests of the beneficiaries of the estate.
The probate court must approve any wrongful death settlement.
Choosing A Personal Representative
Any competent adult person may serve as the personal representative of an estate. To be appointed as a personal representative of an estate in Ohio, a person must meet five requirements.
- They must be at least 18 years of age (i.e., legally competent)
- They must be competent (i.e., mentally competent)
- They must be bonded by a private insurance company
- They must have an excellent credit rating (in order to be bonded)
- They cannot have a criminal record (in order to be bonded)
If the deceased dies with a will, the will sometimes waives the bond requirement. Under those circumstances, to be appointed as the personal representative, the person must only meet the first two requirements, be over the age of 18 and be mentally competent.
Prior to appointing a personal representative of an estate, beneficiaries have the right to receive notice of the request and object to an applicant’s request to be the personal representative in a hearing.
If the beneficiaries do not object to a person being named a personal representative and he or she meets the legal requirements, he or she will usually be named the personal representative by the probate court.
There is no requirement that the personal representative be a beneficiary of the wrongful death claim, be a member of the family, or even have ever known the deceased person.
On certain occasions, a lawyer, bank official, or other neutral third-party may be appointed as the personal representative of the estate. This may be the most desirable outcome if, for example, no family member can be bonded or there is family conflict that prevents all beneficiaries from agreeing on a lone family member to serve as personal representative.
What Does a Personal Representative Do?
In many ways, the personal representative acts like plaintiff in a traditional lawsuit. The difference, however, is that the personal representative is not only making decisions that affect his or her own interests, but is making decisions that affect all beneficiaries of the wrongful death claim.
For example, the personal representative decides whether to file a lawsuit, who and when to sue, what lawyer to have represent the estate for court proceedings, and whether to settle the lawsuit, although the probate court must always approve the settlement before it can be finalized.
The personal representative often has more contact with the lawyers representing the estate (although this is not always the case), is required to participate in certain stages of litigation after the lawsuit is filed called discovery, attends court hearings and pre-trials, and participates in settlement negotiations and mediations.
The personal representative is very important because they have the power to choose which lawyer will protect all the beneficiaries’ interests. This is an important decision. The lawyer chosen has a tremendous impact on the final settlement or jury verdict. Picking an experienced wrongful death lawyer who has the ability and expertise to not only go to trial but secure a jury verdict is critical.
Given the amount of responsibility that goes into being the personal representative of an estate, it is important to have a personal representative who is organized, responsive, willing to vigorously pursue the claim, and make decisions that are most advantageous to all beneficiaries.
Ohio Revised Code 2113.18 authorizes a probate court to remove the administrator of decedent’s estate when the administrator refuses to bring a wrongful death action when a legitimate wrongful death claim exists.[1]
Who Gets The Money For A Wrongful Death Claim?
Ohio law identifies which family members are beneficiaries of a wrongful death lawsuit. Ohio Revised Code 2125.02(A)(1) defines who may claim damages under the wrongful death statute. The statute also identifies what damages can be claimed in a wrongful death case.
Beneficiaries are the family members who were harmed by the death of a loved one, either financially or emotionally or both.
The beneficiaries include the surviving spouse, children, parents, and brothers and sisters of the deceased. Adopted children are included under the wrongful death statute.[2] (The term “children,” as used in R.C. 2125.02(A)(1), includes all natural or adopted children, whether legitimate, legitimated, acknowledged or illegitimate.)
But stepchildren who are not adopted are not listed for wrongful death purposes.
A decedent’s unborn child is a beneficiary of the estate, if the child is born alive. Thus, if the unborn child’s father dies due to someone’s negligence or other wrongful act, that child is a beneficiary once that child is born.
Who is able to recover and how much depends on a case-by-case analysis.
The beneficiaries are fixed at the time of the death. If spouses were divorced at the time of death, then the surviving ex-spouse is not entitled to recover. This is true even if they intended to remarry at some later point in time.
If a child has died, a parent who has been found to have abandoned that child is not a beneficiary of a wrongful death claim and is not permitted to recover for the death of his or her child.
Ohio law presumes that the surviving spouse, parents, and children have been harmed by their loved one’s death. This means that a jury is entitled to compensate the surviving spouse, parents, and children of the deceased person even if there is no evidence or testimony on the matter at trial.
In the case of more extended relatives, including brothers and sisters of the deceased, the jury may provide monetary compensation if there is evidence to support the harm and loss. These injuries, however, are not presumed as they are in the case of the surviving spouse, parents, and children.
Who Determines Which Family Members Get What?
Ultimately, a probate judge will determine how the jury verdict or settlement will be apportioned. The benefit of this approach is that the personal representative is not required, and not permitted, to decide on his or her own which family members will receive what percentage of any settlement or jury verdict.
The breakdown is based upon each person’s relationship with the deceased loved one, and the exact approach often differs depending on whether there has been a jury verdict or a settlement has been reached.
Jury Verdict
If a plaintiff is successful at trial, a jury will be required to write down a specific amount of money that is needed to reasonably compensate the beneficiaries for their harms and losses that have been caused by the death of a loved one.
The jury writes this information down on a piece of paper called a verdict form. The jury may also be asked to answer written questions called interrogatories. Those interrogatories may ask the jury to decide how much each person should be compensated based upon the individual harm they have suffered.
All those numbers are then added to reach the sum that is listed on the verdict form.
After the verdict is reached, Ohio Revised Code 2125.03(A)(1) still requires the probate court to determine how much of the proceeds of the verdict should be provided to each beneficiary.
While the probate court is not required to accept the decision of the jury, the decision of the jury (who saw and weighed all the evidence and determined the total amount of the verdict) provides substantial guidance for the probate court to follow.
Voluntary Settlement
When a voluntary settlement has been reached between the parties, that settlement is not final until it has been approved by the probate court.
Unlike after a trial where a jury has listed what it believed to be the harms and losses to each person, the settlement usually includes a single amount of money that represents the entire settlement.
If all the beneficiaries can reach an agreement on how the proceeds of the settlement should be distributed, the probate court will usually follow that recommendation.
Hearing When No Agreement Can Be Reached
If the beneficiaries disagree on how the proceeds should be allocated or in the case of a settlement, whether there should be a settlement at all, all interested parties can have counsel speak for them if they so choose.
Fights in probate court over money can become messy quickly and can significantly delay the approval of any settlement and the distribution of any funds.
If possible, it is greatly advantageous for the family members to agree on how the money can be apportioned before the issue is addressed by the probate court.
What If One Of The Beneficiaries Is A Minor?
It is not uncommon for one or more of the beneficiaries to be a minor. Several options are available if the beneficiary is a minor, but under each option, the minor will not receive any portion of the verdict or settlement until they are at least 18 years old. Two of the most common approaches are a wrongful death trust or a structured settlement.
Wrongful Death Trusts
The probate court has the authority to order the creation of a trust for any beneficiary until they reach the age of 25 years.
The law requires that each adult beneficiary and the guardian of the trust approve of the trustee. This is to make sure that the trustee is trustworthy and to eliminate any future problems down the road. This makes sure that the money is safe until the minor reaches the age of 25.
Structured Settlements
A typical settlement involves a lump sum payment.
A structured settlement, on the other hand, involves the use of settlement funds to directly purchase an annuity, which is a form of insurance that entitles the investor to periodic payments.
Structured settlements are used in various types of settlements, but are also commonly used when the money involved belongs to a minor. The structured settlement can be established to provide for periodic payments at predetermined times as decided by the parties.
For example, payments can be established at predetermined ages, such as 25, 30, and 35 years of age.
The Importance Of Grief Counseling
We strongly encourage that each of our wrongful death clients seek the professional help of one or more grief counselors. Each of our clients who has seen a grief counselor has benefited in some way. While the benefits may not be immediate, in the long run, they will prove to be invaluable.
Grief counselors are licensed mental health professionals, typically clinical psychologists, licensed counselors, therapists, or social workers who have developed a special focus in grief and trauma.
Many family members will experience depression and anxiety after losing a loved one, and many others may experience more severe forms of traumatic psychological injury, including post-traumatic stress disorder and complex bereavement.
The severity of the grief can depend on many factors, including the relationship to the deceased loved one, the traumatic nature of the death, whether the death or immediate aftermath was witnessed by a loved one, and whether the family members has lost additional loved ones recently, which can compound the grieving process.
Grief counselors are experts in grief and loss. They are most equipped to develop a plan of care to assist in developing coping skills to battle these lifelong scars.
We have worked with the best grief counselors locally, across the state of Ohio, and nationally, and are always willing to assist our clients in getting the appropriate help they need.
Meeting With A Wrongful Death Lawyer
Most clients are anxious when they first speak to a lawyer about the loss of a loved one. For many people, this is the first time that they have needed a lawyer concerning something serious.
Even more stressful, clients are often in the early stages of grieving the death of a dear friend and relative.
Also, clients may not know exactly what happened to cause their loved one’s death, but may have a “gut” feeling that something simply did not go right.
This latter issue is common for medical malpractice cases where clients simply do not know enough about medicine to know what happened, let alone know whether what happened was negligent. More than anything else, most clients simply want answers.
To streamline the process and ensure the quickest and most efficient investigation into the facts of the case, it is strongly recommended that potential clients bring any of the following items to the initial meeting with the lawyer:
- A copy of any Last Will and Testament
- A list of the decedent’s potential beneficiaries (spouse, parents, children, and siblings)
- A list of any potential witnesses who might be able to describe the decedent, his or her relationship to the family, and any positive attributes the deceased person may have had socially or as part of his or her employment
- All medical records in their possession
- All medical bills in their possession
- Any wage statements of the deceased, including W2s, 1040s, 1099s, or other tax documentation
- Any photographs of the deceased before the injuries occurred and any photographs after the injuries occurred (if there was a period of time between the initial injury and death)
- Any notes, calendars, or correspondence describing the events or showing relevant dates
- If the death was caused by a semi-truck or automobile, a copy of:
- The police report
- Photographs of the crash, and
- Any auto insurance information
What is the Law on Ohio Wrongful Death?
Ohio law, called the Ohio Revised Code, section 2125.01 defines an Action for Wrongful Death:
When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensued, or the administrator or executor of the estate of such person, as such administrator or executor, shall be liable to an action for damages, notwithstanding the death of the person injured and although the death was caused under circumstances which make it aggravated murder, murder, or manslaughter.
Ohio Revised Code § 2125.02. Persons entitled to recover; determination of damages; limitation of actions:
(A) (1) Except as provided in this division, a civil action for wrongful death shall be brought in the name of the personal representative of the decedent for the exclusive benefit of the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death, and for the exclusive benefit of the other next of kin of the decedent. A parent who abandoned a minor child who is the decedent shall not receive a benefit in a civil action for wrongful death brought under this division.
(2) The jury, or the court if the civil action for wrongful death is not tried to a jury, may award damages authorized by division (B) of this section, as it determines are proportioned to the injury and loss resulting to the beneficiaries described in division (A)(1) of this section by reason of the wrongful death and may award the reasonable funeral and burial expenses incurred as a result of the wrongful death. In its verdict, the jury or court shall set forth separately the amount, if any, awarded for the reasonable funeral and burial expenses incurred as a result of the wrongful death.
(3) (a) The date of the decedent’s death fixes, subject to division (A)(3)(b)(iii) of this section, the status of all beneficiaries of the civil action for wrongful death for purposes of determining the damages suffered by them and the amount of damages to be awarded. A person who is conceived prior to the decedent’s death and who is born alive after the decedent’s death is a beneficiary of the action. (b) (i) In determining the amount of damages to be awarded, the jury or court may consider all factors existing at the time of the decedent’s death that are relevant to a determination of the damages suffered by reason of the wrongful death.
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(iii) Consistent with the Rules of Evidence, a party to a civil action for wrongful death may present evidence that the surviving spouse of the decedent is remarried. If that evidence is presented, then, in addition to the factors described in divisions (A)(3)(b)(i) and (ii) of this section, the jury or court may consider that evidence in determining the damages suffered by the surviving spouse by reason of the wrongful death.
(B) Compensatory damages may be awarded in a civil action for wrongful death and may include damages for the following:
(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, suffered by the surviving spouse, dependent children, parents, or next of kin of the decedent;
(4) Loss of prospective inheritance to the decedent’s heirs at law at the time of the decedent’s death;
(5) The mental anguish incurred by the surviving spouse, dependent children, parents, or next of kin of the decedent.
(C) A personal representative appointed in this state, with the consent of the court making the appointment and at any time before or after the commencement of a civil action for wrongful death, may settle with the defendant the amount to be paid. (D) (1) Except as provided in division
(D)(2) of this section, a civil action for wrongful death shall be commenced within two years after the decedent’s death.
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(E) (1) If the personal representative of a deceased minor has actual knowledge or reasonable cause to believe that the minor was abandoned by a parent seeking to benefit from a civil action for wrongful death or if any person listed in division (A)(1) of this section who is permitted to benefit from a civil action for wrongful death commenced in relation to a deceased minor has actual knowledge or reasonable cause to believe that the minor was abandoned by a parent seeking to benefit from the action, the personal representative or the person may file a motion in the court in which the action is commenced requesting the court to issue an order finding that the parent abandoned the minor and is not entitled to recover damages in the action based on the death of the minor.
(2) The movant who files a motion described in division (E)(1) of this section shall name the parent who abandoned the deceased minor and, whether or not that parent is a resident of this state, the parent shall be served with a summons and a copy of the motion in accordance with the Rules of Civil Procedure. Upon the filing of the motion, the court shall conduct a hearing. In the hearing on the motion, the movant has the burden of proving, by a preponderance of the evidence, that the parent abandoned the minor. If, at the hearing, the court finds that the movant has sustained that burden of proof, the court shall issue an order that includes its findings that the parent abandoned the minor and that, because of the prohibition set forth in division (A)(1) of this section, the parent is not entitled to recover damages in the action based on the death of the minor.
(3) A motion requesting a court to issue an order finding that a specified parent abandoned a minor child and is not entitled to recover damages in a civil action for wrongful death based on the death of the minor may be filed at any time during the pendency of the action.
The Ohio Revised Code also explains Distribution to Beneficiaries in § 2125.03:
(A) (1) The amount received by a personal representative in an action for wrongful death under sections 2125.01 and 2125.02 of the Revised Code, whether by settlement or otherwise, shall be distributed to the beneficiaries or any one or more of them. The court that appointed the personal representative, except when all of the beneficiaries are on an equal degree of consanguinity to the deceased person, shall adjust the share of each beneficiary in a manner that is equitable, having due regard for the injury and loss to each beneficiary resulting from the death and for the age and condition of the beneficiaries. If all of the beneficiaries are on an equal degree of consanguinity to the deceased person, the beneficiaries may adjust the share of each beneficiary among themselves. If the beneficiaries do not adjust their shares among themselves, the court shall adjust the share of each beneficiary in the same manner as the court adjusts the shares of beneficiaries who are not on an equal degree of consanguinity to the deceased person.
(2) The court may create a trust for any beneficiary who is under twenty-five years of age by ordering that the portion of the amount received by the personal representative for that beneficiary be deposited in trust for the benefit of that beneficiary, until the beneficiary reaches twenty-five years of age, and order the distribution of the amount in accordance with the provisions of the trust. Prior to appointment as a trustee of a trust created pursuant to this section, the person to be appointed shall be approved by each adult beneficiary and by the guardian of each minor beneficiary of the trust.
(3) The personal representative shall not distribute any amount received in an action for wrongful death under sections 2125.01 and 2125.02 of the Revised Code to any person in relation to whom the court has entered an order pursuant to division (E)(2) of section 2125.02 of the Revised Code. (B) The court shall distribute the amount of funeral and burial expenses awarded, or received by settlement, by reason of the death to the personal representative of the decedent, to be expended by the personal representative for the payment, or as reimbursement for the payment, of the expenses.
In Ohio Revised Code § 2305.21, the law sets forth how the action survives:
In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto.
Sources:
[1] Toledo Bar Ass’n v. Rust, 124 Ohio St. 3d 305, 2010 Ohio 170.
[2] Brookbank v. Gray, 74 Ohio St. 3d 279, (1996) syl. 1.
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