Children and the elderly are highly vulnerable populations when it comes to suffering from the negligence of another person. Even the slightest disregard can cause them substantial injury, or worse, death. There is no pain worse than losing a loved one due to the inattention or lack of care of someone else. This is why the legal system has created “wrongful death claims.”
A wrongful death lawsuit allows the immediate family members of the deceased person to take the responsible party to the court to demand justice. In this post, you will learn how to proceed legally in case of wrongful death of a child or a senior.
Wrongful Death of a Child in New York
Children are extremely susceptible to life-threatening injuries from countless reasons. However, one common cause is negligence by doctors or medical staff during delivery. Of every 1,000 infants that are born in America, 6 to 8 of them suffer from a birth injury due to the carelessness of medical staff.
But sometimes the error is so extreme, that the newborn dies before any medical attention can be given to them. Due to their developing bodies, little children are very sensitive to medical disregard. Even a minuscule error in dosage of certain medication can prove to be fatal to the child.
But medical malpractice is not the only cause that’s responsible for wrongful death of a child. As one of the oldest law firms in New York, we have seen hundreds of cases where day care providers and toy manufacturers failed to do their duty and a child paid the ultimate price.
What to do When a Child Dies Due to Someone’s Fault?
The majority of states have a clear wrongful death law in place that allows the parents to recover compensation when their newborn or child is killed due to another’s misconduct. Most states also allow the parents to recover compensation for burial and funeral expenses, as well as the emotional loss.
Unfortunately, New York is one of the few states which don’t recognize the latter kind of loss. If you are a parent in New York who has lost their baby, you can’t recover for your own loss and grief. You can only recover the actual monetary expenses like medical, funeral, and burial. Parents can also recover damages for the value of services the child would have provided to them, like doing household chores.
Unless you have a powerful legal firm with tenacious injury attorneys on your side, it can be difficult to receive damages for wrongful death of a child in New York.
How is Compensation Calculated?
When an adult dies as a result of someone’s slack behavior, the financial loss suffered by their remaining family members is easier to quantify. For example, if a father or a mother dies, their children may seek damages for the loss of the parent’s income and emotional support.
But when a newborn or a young child dies, the New York courts consider the following factors to determine the financial loss:
The monetary compensation in these cases is usually small since it’s so hard to quantify. The younger the child was, the more challenging it can be to determine how much monetary compensation their parents or guardians deserve.
What If My Unborn Child Died Due to Medical Negligence in New York?
If an unborn baby passes away due to some error or mishandling on the part of the doctor or anyone on the medical staff, a wrongful death lawsuit can be brought against them. If you think your unborn child would have survived if the doctor or a nurse hadn’t behaved in a certain way during labor, you may be able to sue them.
Similarly, if you feel that the doctor handling the birth prescribed wrong drugs to the mother that harmed the child and/or mother, contributing to the death of the baby, you may be able to sue the doctor or the hospital for medical malpractice.
But keep in mind that in New York, a wrongful death claim cannot be filed for the death of a fetus. You should talk to an attorney who is well-versed in NY wrongful death laws, as only they can help you determine whether you have a claim, and how to proceed if you do.
Wrongful Death of an Elderly Loved One in New York
Older individuals are also at risk of death due to the negligence of a caretaker or nursing home. You may have heard instances of nursing home abuse uncovered in news, where the aging patient succumbed to death because of the thoughtlessness of nursing home staff.
Take this most recent case for example: two nursing home managers have been charged with criminal neglect for causing neglect that resulted in the death of several disabled and older patients. Despite knowing that some patients were COVID-positive, these “caretakers” intentionally allowed them to mingle with the rest of the healthy patients. As a result, a total of 76 patients died.
There have been many similar instances where hospitals and nursing homes caused fatal illness to the older patients through errors in care, diagnosis, or medication.
If you suspect that your elderly loved one has been a victim of negligence or medical malpractice, don’t let the liable party sweep the matter under a rug just because the person who passed away was “old”. Get in touch with a New York personal injury attorney to see whether you can file a wrongful death claim against the institution.
How is Compensation Calculated?
Speaking of financial recovery, the New York courts usually assume that an individual past the retirement age doesn’t have any considerable earning capacity. Also, most courts in the state operate on the premise that the adult children of senior individuals don’t need much financial support from their parents since, well, they are “adults”.
However, there are cases in which the children or immediate family members of an elderly person may recover a fair compensation by filing a wrongful death claim. If you can prove that your elderly loved one was subjected to negligence or intentional abuse that caused them harm or led to their deaths, you will have a very solid case against the responsible party. The abuse could be emotional, sexual, physical, or even financial in nature.
If it can be established that the nursing home staff or a caretaker mistreated the older adult, it will be considered “neglect” by the New York courts. And if this negligent behavior caused the wrongful death of the ageing individual, you can recover compensation for your loss.
When you file a negligence or wrongful death claim against a nursing home or a care facility, you will need to demonstrate actual damages. Depending upon the case, you may be able to recover the following compensation:
Proving Liability Against Nursing Homes and Care Facilities
Long-term care facilities for the disabled and elderly in New York are notorious for always being understaffed. The overworked and underpaid staff in these places usually has little interest in providing attentive care to all the patients.
Falls are already the leading cause of accidental deaths among people aged 65 years and older. But an even more alarming fact is studies show that 50-75% of residents in nursing homes suffer from falls-related injuries each year. Due to improper maintenance and lack of care, the following hazards contribute to these falls:
If you think that the nursing home or hospital or a caretaker failed to do their duty and it led to your loved one’s death, you may be able to sue them. To establish the negligence, you must first show that the nursing home or the responsible party owed a legal duty to the patient who was the victim of the abuse. Depending on the case, it may require testimonies from experts regarding the standard of care.
Next, you’ll need to prove that the facility or its staff members violated the “duty of care” that they owed your loved one. Some of the most common signs that prove that an elderly person did not receive proper care include:
In most cases of negligence, these signs are evident due to poorly trained staff, understaffing, or even intentional mistreatment. It is also possible that the facility hired a staff member without performing a thorough background check! Since elderly patients and residents are extremely vulnerable, it is critical they are protected from people with history of sexual abuse or violence against others.
Speak to a Wrongful Death Attorney in New York
To say, losing a loved one is hard, will be an understatement – especially when it did not have to happen. Seeking the guidance of a New York wrongful death attorney can make the road to justice a lot easier. The experienced and compassionate attorneys at Rosenberg, Minc, Falkoff & Wolff, LLP, have recovered over $1 billion in negligence and malpractice claims in New York, and we will be happy to assist you.
With almost 100 years’ of experience under their belt, the tenacious attorneys and legal team at Rosenberg, Minc, Falkoff & Wolff, LLP, knows the wrongful death laws like the back of their hand. We can help you investigate your case and explore all the available legal options.
We know that filing a lawsuit won’t bring your baby or elderly relative back, but it will help you get the peace and justice you so obviously deserve. To show you how much we care about our clients, we won’t charge you a penny until and unless we win your case. Call us at 212-344-1000 to schedule your free consultation with one of our experienced wrongful death attorneys in New York.
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