So, you want to sue... UNDERSTANDING A WRONGFUL DEATH LAWSUIT Q: What is 'pecuniary loss'? A: This is a term used to describe the financial loss that the family has suffered from the death of a family member. If a person were earning $30,000 per year, and they were 35 years old, we could project over the next 30 years how much they could be expected to earn over their working lifetime. In many cases, we use an economist to make these projections. The economist uses tables, guidelines, and generally available statistics to help guide us in determining how much money that person would have likely earned over their lifetime. Naturally, some things can never be measured with absolute certainty. Companies can fold, go bankrupt, people can be fired, and their health can worsen. But on the positive side we also look at raises, bonuses, increased productivity, successes and factor that in as well. Q: What if the person who died was not earning a living, or was retired? Can we still claim economic loss to our family? A: Unfortunately, the answer in New York is no. The current law does not permit us to claim that the family suffered a financial loss if they were not bringing in an income. What about social security income? Usually it's not a significant amount. Considering that most people on social security use their monthly payments for basic necessities such as rent, food, and clothing for themselves. There's usually not much left over, if anything, to spend on family members or grandkids. Q: Can family members recover for time they've been out of work while caring for a family member before they died? A: The short answer is no. The longer answer is maybe. If it was a spouse, (husband or wife) who cared for their significant other while alive, then we can sometimes bring a claim for loss of services for that limited time period. If the family had to hire and pay someone to do household chores; cook, clean, wash, etc., then we can try and claim those expenses as well. However, where other family members took days or weeks off from work to help out with family tasks, the law does not really permit us to recover those lost wages. NOR DOES THE LAW PERMIT US TO SEEK EMOTIONAL DAMAGES FOR THE FAMILY'S LOSS OF THEIR LOVED ONE. This is the most tragic part of such a claim. The family has been devastated and they cannot recover compensation for their emotional suffering from the death of their loved one. If you want to change this law, write to your congressman and senator. This is the only way this will be changed. Can you sue your employer? Q: My husband was a construction worker who slipped off a scaffold at his job site. He broke his neck and died from his injuries. Can I bring a lawsuit against his employer? A: No, not his employer. You can however bring a lawsuit against the owner of the property, the general contractor and any subcontractor that may have been involved with your husband's injuries and death. HOW MUCH TIME DOES OUR FAMILY HAVE TO START A LAWSUIT? In New York, in a case involving wrongful death, you generally have two years from the date of death within which to start suit. HOWEVER, BEWARE OF THIS WARNING- There are many exceptions to this rule! THE TIME TO FILE A LAWSUIT MAY BE LESS IF YOU NEED TO SUE A CITY, STATE OR MUNICIPALITY OR A CITY OR STATE HOSPITAL. In those cases, your time to file a claim (which is different than filing a lawsuit) is generally 90 days from the date of the incident. You would then have only one year and 90 days within which to start a lawsuit. The bottom line is that even if you suspect you might want or need to bring a lawsuit for your loved one's untimely death, speak to an experienced New York lawyer immediately so you don't lose your precious legal rights. Once those rights are gone, it's difficult if not impossible to get them back.
Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer