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Just like other states, Virginia has laws that govern claims for wrongful death. Below, we are going to discuss a few of the laws relating to wrongful death in Fairfax, VA, as well as across the state. At Ashcraft & Gerel, our wrongful death lawyers begin the process with an overview and then discuss the statute of limitations for filing a wrongful death civil lawsuit in the state’s courts, as well as who is entitled to file such a claim and the kinds of damages that are potentially available should the claim be a success.
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The Definition of Wrongful Death
In Virginia, wrongful death is defined as a death that is caused by a wrongful act, default, or the negligence of another party. The circumstances surrounding the death must be such that they would have supported a personal injury claim had the deceased party survived. Taking this definition into account, a wrongful death claim can be considered a personal injury claim where the injured party is not able to bring his or her own case to the court. Instead, one (or sometimes more) statutory beneficiary is able to file the claim for wrongful death.
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The Statute of Limitations for a Wrongful Death Lawsuit in Virginia
A claim for wrongful death has to be filed within two years of the date of the deceased party’s death. A wrongful death lawyer can help you file your claim. If the claim is not filed within that two-year time period, Virginia’s statute of limitations bars the case from being heard in a court.
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Who Can File a Lawsuit for Wrongful Death?
In Virginia, a wrongful death claim has to be filed be either one or more of the statutory beneficiaries. Under state law, “statutory beneficiaries” are defined as those dependents or family members of the deceased person who may legally recover in the wrongful death claim.
Such beneficiaries include:
- The surviving siblings and parents of the deceased person, or any such relative who shares the deceased’s household and was dependent on the deceased;
- The surviving children, spouse, or grandchildren of the deceased; and/or
- Any of the deceased’s surviving family members who are entitled to inherit his or her estate under the state’s intestacy laws.
Additionally, under local wrongful death law, the right to file a claim has to follow a certain order. It goes like this:
- Surviving spouses
- Children
- Grandchildren
If there are none of the above, surviving siblings, dependents, or parents are entitled to file a claim. If there are none, the right to file a wrongful death claim will belong to whoever would inherit next under local estate laws.
However, there are exceptions. For example, if there are surviving parents and a surviving spouse but there are no surviving children, both the parents and spouse are entitled to file the claim together. But, parents who are found to have abandoned the deceased person during his or her childhood may not file a claim for wrongful death, nor may they attempt to recover damages in a claim for wrongful death.
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Damages in Wrongful Death Cases
In a wrongful death claim in Virginia, damages might be available that can compensate the family and the estate for several losses.
Such damages in a wrongful death claim can include, but are not limited to, compensation for:
- Medical expenses that are related to the deceased person’s final injury or illness;
- Punitive damages;
- Reasonable burial and funeral expenses;
- Mental sorrow and anguish;
- The value of lost benefits and wages, including such benefits and wages that the deceased may have reasonably have been expected to bring home, had he or she survived; and/or
- Loss of the deceased person’s companionship, care, society, guidance, advice, comfort, and kindly offers.
It is important to note that punitive damages tend to function somewhat differently than other damages. The purpose of such damages is not to compensate the surviving family or the estate for losses. Rather, punitive damages are awarded as a way of punishing wanton or willful bad conduct or other recklessness that demonstrates a conscious disregard for other people’s safety.
Admissions of Guilt vs. Condolences
In the state of Virginia, the law states that expressions of condolences or sympathy by the deceased person’s healthcare providers or any other possible tortfeasors will not be admissible evidence in a court of law. But, we must note that the law distinguishes such statements from those statements that would be considered admissions of fault. For example, the statement, “I am sorry for your loss,” which is a common expression of sympathy when someone dies, would not be admissible in court. Yet, the statement, “I apologize for causing your loss,” is certainly going to find its way into a court in a wrongful death case.
How Much Can the Courts Award in a Wrongful Death Claim?
The Supreme Court in Virginia has reinstated a jury verdict in the amount of $1,700,000 which had previously been reduced by a trial court, citing the statute, where evidence showed the loss and emotional hardships suffered by the spouse from the loss of his wife. The husband described having to prepare his own meals and then dine alone. He related to the jury that during 30 years of military service, his wife would handle the family’s business affairs and she had continued to do so even after he had retired. According to the husband, he was lost when his wife died. He also described how he would frequently visit his wife’s grave. Further, their children testified their loss and described the relationship that had had with their mother over the years, as well as her strong influence on their lives. (Shepard v. Capitol Foundry of Va.)
What If a Person’s Loved One Is Killed in an Accident That Is Not Their Fault?
A loved one can make a wrongful death claim against the person who caused the accident that took away their loved one. Typically, claimants deal with the insurance company that represents the responsible person or company, and the claimant can submit their claim to that person or company directly for evaluation, in an attempt to settle the wrongful death case. If the other party is being unfair, the claimant may have no choice but to file a wrongful death lawsuit and pursue their remedies in a court of law with the help of a wrongful death lawyer.
Wrongful Death Damage Cap & Medical Malpractice
Virginia is among a growing number of states in the U.S. that has instituted tort reform laws on medical malpractice cases. This means that if a person’s wrongful death occurred as a result of medical malpractice, there is a limit placed on the amount of compensation that the family can recover. The wrongful death damages cap for medical malpractice is currently $2,000,000.
This damage cap of $2,000,000 includes all funeral costs, medical bills, and other economic losses, as well as pain and suffering. If a jury does award a medical malpractice wrongful death person’s family more than the capped amount, that award will be reduced by the court, even if the actual damages to the family tend to far outweigh the cap amount. It seems to be somewhat of an unfortunate law for Virginia families, but it is important to consider it when learning about the value of a wrongful death claim.
The city differentiates between those medical malpractice cases that resulted in injury and those that led to death when it comes to the time limit for filing a case, or the statute of limitations. In instances of injury due to medical malpractice, victims have two years from the day of the injury to file a claim. Additionally, there is no discovery rule in Virginia, which means that the time limit begins as soon as the injury is incurred, regardless of when it was discovered. In cases involving medical malpractice and wrongful death, a lawsuit has to be filed within two years of the date of the person’s death.
The Virginia Medical Malpractice Act designed review panels aimed at assessing the merit of medical malpractice claims. The panels may be appointed at the request of either party, and the Supreme Court then chooses the panelists. Each panel will consist of two lawyers, two doctors, and a judge. The judge will act as the chairman of the panel and is not allowed a vote on the case. Once the panel has reviewed the evidence, they will provide an opinion on whether the healthcare provider did violate a medical standard of care, and whether or not that violation was the legal cause of the person’s death.
It is worth noting that the review panel’s findings are not binding, and can be used as evidence should a lawsuit be field post-review. What this means is that the lawyers and doctors on the panel could be called as witnesses in court, and such testimony may be damning when given in front of a jury.
Under state law, pre-suit binding arbitration is permitted with the caveat that surviving patients can withdraw from the arbitration agreement within 60 days of the relevant medical treatment being terminated.
As in a number of other states, Virginia necessitates the use of expert medical witness testament to show how the defendant violated the standard of care and also to establish that standard of care. Experts are required to demonstrate knowledge of the defendant’s specialty, and they must further have active clinical practices in the specialty or at least closely related in the year prior to being an expert.
What Are Survival Claims?
In the state of Virginia, wrongful death victims, although deceased, may not have a claim filed on their behalf—only their surviving family members can file a claim for damages incurred. There are other jurisdictions that do allow families to file claims and seek damages for both the family and the victim. But, under state laws in Virginia, if death results from injuries that are incurred through negligence, only the deceased’s family are permitted to claim damages.
One particular nuance of this law worth mentioning is that personal injury lawsuits are designed to survive a person’s passing. If the person suffers injury due to another person’s negligence and later dies from a cause of death that is not related to the injury, survivors can still file a lawsuit with the help of a wrongful death lawyer, even though the victim has passed. In such instances, administrators of the deceased person’s estate may be able to sue to recover for pain and suffering, funeral costs, medical expenses, and economic damages on behalf of the deceased, but they are not allowed to file a claim for wrongful death, since the injuries were not a cause of the death.
How to File a Wrongful Death Claim in Virginia
Typically, there are four steps to filing a wrongful death claim:
- Determining fault: Determining liability in wrongful death cases derives from who was at fault for the deceased person’s death. As a result, the first step is to determine fault when filing a claim for wrongful death. Our knowledgeable Fairfax wrongful death lawyers can assist you with examining medical records, interviewing witnesses, perusing police officer reports, and obtaining any other evidence, as well as consulting with experts to establish liability.
- Determining who is allowed to file a claim: We have already discussed who may file a claim, and a wrongful death lawyer will guide survivors through the entire process of determining who is permitted to claim for damages.
- Determining the damages: Determining the damages in a wrongful death case is a somewhat painstaking and daunting process. While there is certainly no amount of compensation that will bring a loved one back, monetary damages can help surviving family members and loved ones handle the financial burdens associated with their loss.
- Filing the wrongful death claim: Experienced wrongful death lawyers can present the claim for damages to the party who is at fault, as well as his or her insurance company. If they cannot negotiate an out-of-court settlement, an attorney can then file a wrongful death lawsuit in court.
What Happens When the Verdict Fails to Distribute Discovery?
When it comes to judgment to distribute recovery, the verdict may specify the amount or a portion to be received by each of the deceased person’s beneficiaries, if there are any. If either party requests, the case can be submitted to the jury with instructions to specify the awards’ distribution, if there is any. If the jury cannot agree on or cannot make such a distribution, the court will specify the monetary distribution and then enter judgment accordingly. For distribution purposes, the court may decide to hear further evidence.
The amount that is recovered in a wrongful death action must be paid to the personal representative who must first pay the fee of the wrongful death lawyer(s) and other costs and then distribute the amount that is specifically allocated to the payment of funeral, medical, and hospital bills. The rest of the amount recovered will then be distributed to the deceased person’s personal representative and beneficiaries. Distribution made to beneficiaries is to be free from all debts and liabilities of the deceased person. If there are no beneficiaries, the amount recovered will be considered assets in the hands of a personal representative and must be disposed of according to the law in the city.
Do You Need a Wrongful Death Lawyer in Fairfax?
The experienced and knowledgeable wrongful death lawyers at Ashcraft & Gerel know how hard it is to lose someone you love. Talk to us about your wrongful death case and let us help you recover compensation for your loss.
