Posted in Wrongful Death on July 2, 2022
Losing a loved one under any circumstances is a tragedy – but if you believe that someone should have prevented the death of your family member, it can be even more difficult to cope and grieve in peace. Bringing a Las Vegas wrongful death lawsuit can provide justice, closure and financial compensation so that your family can move forward. Most wrongful death lawsuits have four key elements of proof. These are the facts that the plaintiff (filing party) must prove as more likely to be true than not true to win the case.
First, the defendant must have owed the deceased victim (referred to as the decedent in a wrongful death claim) a duty of care. A duty of care is an obligation to act with ordinary or reasonable care based on the situation. Almost everyone owes duties of care to others in everyday situations, such as operating a motor vehicle or inviting someone onto a property.
The specific duties of care will depend on the relationship between the defendant and the decedent. For example, a doctor owes different duties of care to his or her patients than the average person owes to a friend. If you need to prove a wrongful death claim based on medical malpractice, you will have the added responsibility of demonstrating the professional standard of care. This is often accomplished using an expert medical witness.
The second element of proof is that the defendant breached his or her duty of care. This is otherwise known as negligence, or the failure to use ordinary care. A wrongful death lawsuit can be based on allegations of an unintentional (careless) or intentional breach of the duty of care. Either way, a defendant can be held responsible for wrongful death.
Unlike a criminal case for homicide, proving an intent to harm or kill the victim is not a requirement during a civil wrongful death case in Nevada. It is enough to show that the defendant accidentally or carelessly fell short of the duty of care that was owed to the decedent. There are many examples of a breach of the duty of care that can create the basis for a wrongful death lawsuit.
The third element is often the most difficult to prove. It is causation, or proof that the defendant’s breach of the duty of care is what caused (or significantly contributed to) the decedent’s fatal injury or illness. The “but for” test is often used to determine whether a plaintiff has met the burden of proving causation. If the victim would not have passed away but for the defendant’s negligence, the defendant will be liable. The defendant’s action or failure to act must be the actual or proximate (legal) cause of the death in question.
The fourth element of proof is damages. Damages is the legal term for losses suffered by the filing party. In a wrongful death lawsuit, the filing party can be surviving family members, the decedent’s estate or both. Damages often refer to funeral and burial expenses, medical bills connected to the final injury or illness, lost wages or inheritance, loss of consortium, and the family’s grief and mental anguish. Some wrongful death cases also involve punitive damages, which penalize a defendant for especially wrongful or egregious acts.
These are the same four elements needed to prove a personal injury lawsuit in Nevada. However, there are key differences between a wrongful death claim and a personal injury lawsuit, such as the damages available. If you believe your family has grounds for a wrongful death claim in Nevada, schedule a free, zero-obligation consultation with one of our attorneys at Koch & Brim, LLP. We will listen to your loved one’s story and let you know if your case has merit.