PHONE: 585.673.3053   |   Address: 1159 Pittsford Victor Rd, Suite 245, Pittsford, NY 14534
 
WRONGFUL DEATH The death of a loved one far too early leaves a hole in your heart and in your family. While a lawsuit cannot ever completely right the wrong that has been done, the law provides measures of damages for these types of cases.

Wrongful death cases exist where another’s negligence, whether that be due to medical malpractice, an auto accident, or another form of personal injury action, caused someone’s death. New York, unlike many other states, is a pecuniary loss state. New York law does not allow family members to recover for their emotional injuries suffered after the loss of a loved one. This means you must be able to prove actual pecuniary losses to recover damages for wrongful death. There are several ways damages can be established.

Your loved one may have suffered a period of pain and suffering before they passed away. This is often the case with a protracted illness, hospitalization or other long-term condition. Conscious pain and suffering is just that. It is the pain and suffering your loved one endured before their death. The relative value of that suffering is often closely related to the time period over which your loved one suffered. Jury awards in cases of similar illnesses, conditions and injuries in the same area where your case may be tried can provide some guidance on this value. Any portion of a settlement award or jury verdict allocated to compensate for someone’s pain and suffering before their death becomes an asset of the deceased’s Estate and can be subject to the claims of creditors.
The New York State Estates Powers and Trusts Law outlines the various forms of monetary losses that can be recovered for those surviving the decedent. These can include reductions in the value of the deceased’s estate due to his/her untimely death, funeral and burial expenses, or unpaid medical bills and liens. Loss of past and future income is also included. Compensation for these forms of damages are “wrongful death” damages and pass outside of the deceased’s estate. In other words, any portion of a settlement or verdict allocated to these categories would not be considered assets of an estate subject to creditors.

A wrongful death lawsuit may not be brought until a person is appointed to represent the estate of the deceased. A Power of Attorney designation extinguishes with the death of the decedent. A Surrogate’s Court in New York State must appoint a representative for an estate and give that individual the power to bring a lawsuit. Sometimes this person is already determined by a Last Will and Testament and other times that named individual is no longer able or willing to serve or the deceased left no will. In those situations, remaining heirs can decide among themselves who may be the best representative of the estate and either agree to an individual to be appointed or appear for a hearing and allow the court to decide which heir is best suited to fill the role.
Damages in a wrongful death action will either be allocated according to the Last Will and Testament of the deceased or based on the laws of intestacy in New York State where there is no available will. These laws specifically outline which heirs will take the proceeds of the lawsuit and how those proceeds will be divided among those heirs.

The determination of whether it can be proven that another individual or medical provider’s mistake caused the death is based upon a complex set of factors. The coordination of appointing a representative for the estate and determining which measures of damages apply and how they will be distributed are additional hurdles. Finally, in many death cases, there are outstanding liens and rights of reimbursement for medical benefits paid on behalf of the decedent before their death. This may mean that Medicare, Medicare Advantage plans or county Medicaid programs may look to be paid back. All of these issues require the careful eye of an attorney familiar with handling these types of cases and balancing these different factors. If you believe your loved one’s death was the result of another’s mistake or malpractice, please reach out today for a consultation.
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Phone: 585.673.3053

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Address: 1159 Pittsford Victor Road, Suite 245, Pittsford, New York 14534



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