What Is the Difference Between Wrongful Death and Medical Malpractice?

Colburn Law

Posted in Personal Injury on February 22, 2019

A wrongful death lawsuit takes the place of a personal injury lawsuit when the victim of negligence or an intentional tort does not survive his or her injuries. A medical malpractice lawsuit is a civil action against a medical professional for violating the standard of care for a patient and harming the patient. While these are generally two separate types of claims, medical malpractice can potentially lead to a wrongful death lawsuit if medical negligence leads to a patient’s death. If you believe you were a victim of medical malpractice, speak to a medical malpractice attorney at Colburn Law today.

Elements of Medical Malpractice

Every medical professional has a professional duty to prevent harm to their patients and to only use approved treatments for known medical conditions. If a doctor, nurse, or other healthcare professional is negligent while performing his or her duties and injures a patient, that medical professional commits medical malpractice. Medicine is uncertain by nature and some mistakes are honest and unavoidable. The determining factor is whether another similarly skilled medical professional in the same situation would have acted in the same manner given the circumstances.

To succeed with a medical malpractice claim, the plaintiff must prove an official doctor-patient relationship existed between the plaintiff and defendant and then prove how the defendant violated the standard of care for the patient’s condition. Medical negligence can take many forms.

• Failure to secure a patient’s informed consent can potentially lead to a patient undergoing unnecessary or unwanted treatments that may or may not be effective.
• Misdiagnosis or delayed diagnosis can cause a patient’s condition to needlessly worsen, or the patient may undergo unnecessary treatments with harsh side effects.
• Surgical mistakes, such as injuring a patient with a surgical tool or leaving surgical supplies inside a patient’s body cavity, can potentially cause long-term damage or even jeopardize a patient’s life.
• Prescribing the wrong medication or a medication that contains a substance to which the patient is allergic can lead to serious medical complications and possibly even patient death.

These are just a few examples of medical negligence that can lead to a medical malpractice claim. When the victim of medical malpractice dies, the surviving family would still need to follow the typical framework of a medical malpractice claim while also meeting their state’s wrongful death statutes.

Wrongful Death Statutes

In most states, the time limit for filing a wrongful death claim is usually close to the same time limit for personal injury claims. For example, if a state upholds a two-year statute of limitations on wrongful death claims, a claimant has two years from the date of death to file such a claim. However, the discovery rule can apply if an at-fault party attempts to conceal his or her liability or if the cause of death remains unknown for some time after the death. In these situations, the statute of limitations begins on the date the claimant discovered the cause of the death in question. In Washington, the wrongful death statute of limitations is three years.

State law also governs who may file wrongful death claims. Typically, the decedent’s surviving spouse or domestic partner has the first right to file a wrongful death claim, but it is possible in most states for anyone with a claim on the deceased’s estate to pursue a wrongful death claim. If the deceased had an estate and named a specific representative, that individual will act on behalf of the deceased and manage legal proceedings for the wrongful death claim.

Things to Remember About Medical Malpractice Lawsuits for Wrongful Death

Medical malpractice lawsuits are some of the most difficult claims to win; doing so requires coordinating with expert witnesses, submitting to a medical board review, and compiling extensive evidence that proves a medical professional’s breach of professional duty. A wrongful death claim is also complex in that it involves somewhat limited damages and the circumstances of the death in question heavily influence the surviving family’s available recovery. Ultimately, anyone facing a wrongful death claim resulting from medical malpractice needs an attorney with extensive experience in both types of cases.