Wrongful Death Terminology
Wrongful death is a type of lawsuit that is filed after someone is killed due to the negligence or intentional act of a person, business or government entity. It’s filed by the next of kin to compensate them for their economic losses and pain and suffering. We handle many wrongful death cases on behalf of grieving families in Maryland. We know and understand both the stress and emotions our clients are going through, as well as the legal complexities these types of cases can present.
There are many terms and legal “buzz words” used in these types of cases. We take the time to explain to our clients the law, how the legal system works, what we think about their cases and their best options to obtain compensation. As part of that process our clients need to know the language that will be used during the litigation process.
- Arbitration: Many nursing homes, assisted living facilities and group homes require, as part of the admission process, that the resident and/or the family sign a mandatory arbitration agreement which would prevent them from taking legal claims to court. Instead they would have to be presented at an arbitration hearing which, depending on the rules, may not be favorable to plaintiffs. At an arbitration, an arbitrator or panel of arbitrators would sit as judge and jury in a confidential, private trial. We will fight against arbitration whenever possible. Recent legislation enacted by the Center for Medicare Services will severely limit the use of pre-dispute arbitration by skilled nursing facilities.
- Damages: They are the measurement of the economic losses such as the cost of medical treatment and lost income as well as non-economic losses such as disfigurement and psychological pain and suffering by the plaintiffs due to the defendant’s negligence. The plaintiff has the burden of proving damages occurred and the amount.
- Defendant: The party or parties who are accused of being responsible for the death of the deceased. Our office takes these cases when Maryland nursing homes, assisted living facilities and group homes are involved. Often these cases involve medical malpractice claims, so doctors, radiologists, nurses and hospitals could also be defendants. Though businesses, organizations or individuals may be named as defendants, it’s their insurance companies who pay for their defense, settlements and jury awards up to the liability limit on the insurance policy.
- Discovery: This is a critical part of the litigation process, where both sides supply the other with information and documents (whether they exist on paper or electronically). A wrongful death case is built on the facts of the situation that lead to the death of the family member. Once those facts are obtained the law can be applied and both sides can make arguments about whether the defendant is liable and, if so, what the damages are. Discovery can include interrogatories (questions to and from each side), requests for production (including seeking copies of documents, data or tangible evidence), requests for admissions of facts and genuineness of documents, subpoenas for records and documents, and depositions (where witnesses are asked questions under oath by attorneys for both sides).
- Mediation: If the parties cannot come to an agreement on their own to reach a settlement, they may hire a mediator to help them resolve the lawsuit. The mediator is a neutral, third party who normally is an attorney or retired judge who helps the parties see the weaknesses and strengths of their case and narrow the disagreements between them and hopefully reach a mutually acceptable settlement agreement.
- Negligence: Most wrongful death claims allege that the defendant made a mistake. Under a negligence cause of action, the plaintiff would need to show the defendant owed a duty of care to the deceased, that duty was breached, that breach was the factual and proximate (or legal) cause of the death and the plaintiff suffered damages as a result.
- Negotiation: Most civil lawsuits settle before a trial takes place. They can also settle during or after a trial. Negotiation is normally done through communications for the parties by their attorneys. This often occurs after a plaintiff’s attorney sends the defendant a demand letter (outlining the case and making a settlement demand), after discovery concludes (because both parties have most or all of the facts of a case they have a better idea of the strengths and weaknesses of a case and an understanding of the value of a case) or shortly before a trial is set to begin (because neither party wants to risk a bad outcome with a trial).
- Plaintiff: The party or parties who are filing the lawsuit, those who claim to have suffered personal and economic damages because of the defendant. Under Maryland law, plaintiffs in a wrongful death lawsuit are the immediate family members of kin. Relatives by blood or marriage who were financially dependent upon the deceased party may also be able to maintain a cause of action, if there are no spouse, parents or children of the deceased.
- Punitive damages: Damages are normally meant to compensate plaintiffs for their losses, but in cases of extreme negligence or intentional acts, punitive damages, meant to punish the defendant and discourage it and others from acting the same way, may be available. Punitive damages are relatively rare in wrongful death cases.
- Statute of limitations: Every civil lawsuit has a deadline for filing, which is the statute of limitations. Unless there are extraordinary circumstances, a judge will dismiss a case that missed the deadline. For wrongful death cases in Maryland, the statute of limitations is three years from the date of death.
If your loved one died while under the care of a Maryland nursing home, assisted living facility or group home and you believe it was caused by abuse, neglect or negligence, contact our office. At the Law Offices of Roger S. Weinberg you’ll find compassionate support and experienced advocates to help your family through the tough times. Call 410-825-3161 today to schedule a free consultation.