The damages available in wrongful death lawsuits vary a great deal from state to state. Many states "cap" or limit the amount and type of damages, especially in medical malpractice claims. (To learn more about medical malpractice, read Nolo's article Medical Malpractice Basics.)
In general, there are three types of damages that may be available to the survivors in a wrongful death lawsuit: (1) economic, (2) non-economic, and (3) punitive.
These include the value of the financial contributions the victim would have made to the survivors if he or she didn't die, and include the following:
Although less tangible, non-economic damages often have more value than economic damages. Examples include:
Punitive damages are awarded to punish the defendant for especially bad conduct. In many states these damages are not available in wrongful death lawsuits or not recoverable against certain defendants including most governmental agencies. However, treble damages (which are in an amount equal to three times the actual damages) may often be recovered against nursing homes for elder abuse and death.
In some states, the survivors can recover interest on the damages from the time they were incurred up to the time they are collected. And in some cases the survivors can get reimbursed from the defendant for attorneys' fees and costs incurred in the bringing the lawsuit.
Calculating damages can be extremely complicated, and the parties often use expert witnesses, such as economists and actuaries, to give their opinions on the proper amount of damages. These calculations include not only income and benefits earned outside the home, but also the monetary value of services and care provided inside the home by a homemaker parent (such as child care, cooking, laundry, house cleaning and maintenance, shopping, education, medical care, and transportation).
Every state sets certain time limits, called the "statute of limitations," on bringing wrongful death lawsuits. The general rule is that a lawsuit must be filed within two years of the date of the misconduct that caused the death of the victim. (To learn more about these time limits, read Nolo's article Statutes of Limitations: Is Your Lawsuit Timely?)
In certain cases, however, the statute of limitations may be as short as one year. Special rules apply to minors (minors usually have two years from the date they reach their majority to file a lawsuit) and persons with a mental disability and in cases involving fraud or intentional acts.
In many states, the statute of limitations does not begin ticking until the harm is discovered (sometimes called the "date of discovery"). For example, if a doctor's failure to diagnose cancer is not discovered for years after the error (because the cancer lays dormant), the statute of limitations may not start until the patient learns of the cancer.
Some states put an upper limit on the date of discovery in certain types of cases, such as construction, product liability, medical malpractice, and legal malpractice claims. For example, a state may say that a survivor may bring a lawsuit within two years from the date of discovery of harm, but not more than five years from the actual infliction of the harm.
Because wrongful death actions often involve complex areas of the law (like medical malpractice) and can result in large damage awards, it is often wise to hire, or at least consult with, a lawyer.
For help in choosing a good personal injury attorney, read Nolo's article Finding a Personal Injury Lawyer. Or, use Nolo's Lawyer Directory tool below to find personal injury attorneys in your geographical area.
Updated by: Kathleen Michon, J.D.