The term “wrongful death” is a legal term, one you will hear most often in the context of a “wrongful death lawsuit.” Wrongful death lawsuits occur when someone dies because of the misconduct or negligence of someone else. 

Wrongful death claims can be brought by the surviving family members of the deceased person against the party liable for their death. A wrongful death claim can be brought against an individual or an organization, such as a company or a government body. 

Within the legal system, a wrongful death claim is a civil action, as opposed to a criminal one. 

What is the difference between a civil and criminal action?

The difference between a civil and a criminal action is that in a criminal action, the Crown prosecutes the accused under a public law statute (e.g. the Criminal Code, which defines most Canadian criminal offenses). A civil action is a private one, where one individual sues another.

Civil and criminal actions are also different in the following ways:

  • Case objectives
  • Deadlines for taking legal action
  • Evidentiary burdens

It is possible for a person to be sued in a civil case and a criminal case for the same act. 

When does a wrongful death case usually occur? When is a wrongful death claim applicable?

A wrongful death suit is typically brought by a family member after a situation occurs in which the victim would have had a valid personal injury claim, but died as a result of the actions of another instead. 

The most common wrongful death lawsuits

A wrongful death action can be brought in any number of cases. Below are some of the most common.

Medical malpractice

Family members or a medical malpractice lawyer can file a wrongful death suit if a doctor fails to diagnose a medical condition, and this failure leads to their patient’s death. It can also occur if a medical professional acts negligently or carelessly, also leading to a victim’s death. 

Examples of medical malpractice include:

  • Surgical Errors
  • Administration Errors
  • Medication Prescription Errors
  • Misdiagnosis and Delayed Diagnosis
  • Pregnancy or Childbirth Negligence
  • Absence of Informed Consent
  • Refusal to Provide Care Based on Discrimination

Automobile accidents

A car accident can also be a reason for someone to sue for wrongful death, as long as there is some instance of negligence involved. For example, many wrongful death claims are brought as the result of someone driving while intoxicated, if they were not obeying traffic laws, or if they were found to be driving recklessly. 

Product liability

Products sold to individuals in stores are expected to be safe for them to use. However, if use of that product leads to someone’s death, a personal injury lawyer can file a wrongful death claim. In this category, wrongful deaths can occur when a product is defective, or because of mistakes in how it was assembled, labeled or even marketed.

Examples of product liability cases include problems with some of the following products:

  • Cars (or car parts)
  • Machinery and industrial products
  • Medical devices
  • Power tools, kitchen appliances, etc.
  • Children’s products (e.g. a car seat, a toy, a crib)

Homicide / Intentional Killing

As mentioned above, a murder charge in criminal court is different from a wrongful death claim in civil court, but both can be brought against someone for causing a victim’s death. The outcome of one case does not necessarily affect the other. 

For example, many point to the O.J. Simpson case, in which he was found not guilty in criminal court for the double-murder of his ex-wife Nicole Brown Simpson and her friend Ron Goldman. Although found not guilty, he was successfully sued in civil court in 1997. Simpson was found to be liable for wrongful death in the double murder, and was ordered to pay $33.5 million in damages to the Brown and Goldman families.

A murder charge is different from a wrongful death claim in a few ways. A murder case is held in criminal court, and prosuecuters file charges on behalf of the state in order to secure convictions, which can lead to jail time and fines. On the other hand, a wrongful death claim is held in civil court, and it is filed by relatives of the deceased in order to secure damages in the form of financial compensation.

What are the main elements in a wrongful death lawsuit? How do you prove wrongful death?

To bring a successful wrongful death lawsuit, a few key elements are required. 

  • A death must have occurred
  • The death must have been caused by the negligence of another party, or by their intent to cause harm
  • The death caused (or will cause) the family of the deceased to suffer financially

Those suing (the plaintiffs) must meet the same burden of proof as they would have to in a personal injury claim. This means that they have to prove three essential elements:

  1. The defendant owed the victim a duty of care
  2. The defendant failed in this duty
  3. The failure directly (or indirectly) led to the victim’s death

Who can sue for a wrongful death?

The law is different in different places, but in Ontario, Canada, the wrongful death statute (which can be found in the Family Law Act) states that the following family members can collect damages:

  • Spouses
  • Children or grandchildren
  • Parents or grandparents
  • Siblings

What damages can you sue for in a wrongful death case?

Each case will be slightly different, but in general, some of the claims for financial losses a personal injury lawyer or personal representative can claim will be those related to:

  • Medical and funeral expenses
  • The income of the deceased that will no longer be provided to family
  • The loss of guidance, care and companionship that dependents might reasonably have expected to receive (sometimes referred to as “loss of consortium)
  • The loss of income sustained by the claimant as a result of the death (for example, if a family member was unable to work due to emotional pain and suffering)
  • Loss of any inheritance as a result of a death
  • Any travel expenses for those visiting the victim during treatment prior to their death
  • Any loss of household or childcare services that would have been provided by the deceased
  • Any medical expenses or hospital bills prior to death

Is there a time limit in Canada related to when you can sue for wrongful death?

Wrongful death claims must be made within two years of the death.

Is it hard to prove a wrongful death?

If you or someone you know died as the result of the negligence of some other party – even if you’re not sure if your situation qualifies – it is always best to contact a personal injury lawyer to get the information you need. 

For a great personal injury law firm in Ontario that you can trust, reach out to DWA LAW. They have a high level of professional expertise and personal service, and a great deal of experience getting the level of compensation their clients deserve.

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