Proving Negligence in a Wrongful Death Case

A wrongful death case may be based on one or more theories, including negligence and strict liability depending on the particular facts of the case. Proving a wrongful death case that is based on negligence requires establishing the elements of negligence and proving fault on the part of the defendant(s).

Elements of Negligence

To prove a case for negligence, a plaintiff must be able to show that the defendant owed a duty of care, the duty owed was breached for some reason, the defendant caused plaintiff's injuries (in a wrongful death case - the defendant caused the death of the victim), and damages. In return the plaintiff may assert certain defenses to the charges.

Negligence cases are often presented before a jury who must weigh the evidence and decide whether they think each and every element of negligence has been adequately proved to justify a verdict in the favor of plaintiff. Once negligence is established, then damage awards may also be decided by a jury.

Proving Fault

To prove a case for negligence a plaintiff must show that the defendant breached a duty of care which resulted in a wrongful death. Cause is an important element of negligence. Both proximate and legal cause must be established. While a defendant is not required to be the only cause it is vital for a plaintiff to establish cause.

The duty of care required of a medical professional and physicians is much higher than that of the average person because of the delicate and sometimes dangerous nature of their work. The expectations for a particular duty of care depends on the nature of the duty and will vary by community standards. Failure to exercise the care that a prudent person would exercise under similar circumstances is one commonly used standard for measuring this duty.

Getting Legal Advice

A wrongful death case should be brought by an experienced personal injury attorney who has successfully handled other wrongful death claims. An attorney will be able to provide you with detailed information about the legal process and the law in your particular case. Because each case is decided on its own merits, it is difficult to know the outcome of an actual case, but an attorney who does medical malpractice will generally work on a contingency fee basis, meaning you will not have a lot of out of pocket legal expenses.