Albany Medical Malpractice Attorney Discusses Wrongful Death Actions

Wrongful Death

At one time or another we have all heard about a wrongful death action—but what exactly is that? Unfortunately as a medical malpractice practitioner, there is an upsettingly large amount of cases that result in the death of a patient. Particularly when the medical malpractice is so outrageous, a patient may die as a result of the doctor’s negligence.

Essentially, a wrongful death action is a claim against a person who is alleged to be liable for the death of another. This is usually brought by the close relatives or next of kin from the deceased person. Which if you really think about it, it is one of the only times you can sue for an injury caused to another person! Another popular one for medical malpractice is loss of consortium/services. This is because of standing, which allows a party to sue because they have an interest in the litigation and are able to bring the lawsuit.

For wrongful death actions, there are both common law and statutory authority for bringing an action. In New York, the statute is called the Estates, Powers and Trusts Law (“EPTL”) section 5-4.1 “action by personal representative for wrongful act, neglect, or default causing death of decedent.” As mentioned above, the case is brought by a personal representative (usually a close relative or next of kin) who brings “an action to recover damages for a wrongful act, neglect, or default which caused the decedent’s death against a person who would have been liable to the decedent by reason of such wrongful conduct if death had not ensued.”

As in many states, in New York the statute is STRICTLY interpreted. In fact, it is incredibly strict as courts do not use their discretion when determining whether a wrongful death action may be brought. For instance, in New York claims for wrongful death actions when a fetus has been killed because the statute says “decedent” and a “decedent” is someone who is dead, and to be dead you need to have been alive, and to be alive, you have to have been born. This is how strictly the statute is interpreted!

As noted a few days ago in one of my posts, there is also a statute of limitations for a wrongful death claim. Here, the action must be sued upon, or bought, within TWO YEARS from the moment of the death of the decedent. That is also FAST! Another tricky aspect of this statute is that the underlying claim must ALSO be alive still. For example, if doctor A was negligent to patient B on January 1st, 2000, the normal statute of limitations for medical malpractice is July 1st, 2002. Therefore, to have a wrongful death action, B must either bring that lawsuit within that time period and then pass away and his or her estate sue within two years, OR B dies before July 2002 but has not yet sued, and brings a lawsuit for both medical malpractice and wrongful death.

Yes—this is confusing!

In one interesting case—with bad results for the victim—was a car accident case which occurred on June 1, 2007. Car accident cases are generally based on negligence, which has a three year statute of limitations. The victim’s health started to decline and they had not yet sued, and on June 2, 2010 the victim died. The estate tried to sue for both personal injury due to negligence and wrongful death. The lower court dismissed the personal injury claim because it was not brought within three years; this is CORRECT! But the court said the wrongful death action was sued on within two years of the death, and it was triable. The defendant appealed and the Appellate Division said the defendant was RIGHT! For a wrongful death claim, the underlying—i.e. the personal injury claim—must also be viable! Since the personal injury claim had expired, the wrongful death action could not be brought!

Wrongful death actions are also difficult to cope with because we are discussing the life of a loved one and the circumstances surrounding their death. As I have said countless times before, the loss of another human being can NEVER be compensated with money, EVER! But this is the only way we can attempt to compensate the decedent’s family while still punishing the negligence of a doctor.

But what do you think? I would love to hear from you! I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at . You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at