The process of pursuing these claims begins with opening an estate in probate court. The decedent’s family or other heirs must make this decision. the heirs will need to decide who should administer the estate, if the deceased’s will does not name an individual. The administrator of the estate holds specific powers and duties, including the ability to obtain records and reports not available by other means.
After the estate is setup and the necessary records are obtained, the estate will need to hire an expert to determine whether the death was due to the negligence or direct actions of another. Using this information, your attorney can determine whether there is a cognizable claim against other parties. Without an expert review and analysis by a wrongful death attorney, the estate may be limited in their options. Also, if the expert analysis determines the death was by natural causes or an act of God, then there is no claim for wrongful death or survival that can be pursued. This information is important to obtain at the earliest possible moment so the estate does not incur unnecessary costs and fees by pursuing a lawsuit that does not have merit.
If there is a claim for wrongful death or survival claims, then the estate must file a lawsuit in the appropriate common pleas court. The appropriate court is determined by a number of factors, including where the death occurred, where the defendant(s) reside, where the defendant(s) do business, and where the probate estate was established. Once the lawsuit is filed, it proceeds just as any other civil case towards trial. The complain must be filed and served upon all other defendants. In addition to the estate, individual family members may have a claim for loss of consortium. Typically, the widowed spouse and the decedent’s children file individual claims against the wrongful parties.
The defendants will file answers and discovery will commence. During the discovery phase, there will be an exchange of information between all parties. There will be depositions taken to secure the testimony under oath. Depositions can include the heirs and family members for the purpose of determining the history of the decedent and to evaluate any damage claims made by family members.
The goal of filing a lawsuit is always resolution. Because there is no way to bring back to life the deceased party, resolution typically involves the exchange of money from the defendants to the estate and family. If the parties are unable to come to an agreement, then the case will have to be presented to a jury at a trial. The amount of time between the filing of a complaint to the presentation to a jury can take several years. While this may seem like a long time, it is important the parties have an opportunity to fully evaluate the facts of the case and to investigate all claims and defenses. Due to the seriousness of these types of cases, parties typically proceed with caution to ensure they do the best possible job for their clients and to get it done correctly.
If you believe you have a possible wrongful death and survival claim, contact Ryan, LLP to speak to a wrongful death attorney. We have experience litigating wrongful death and survival claims to acceptable resolution. Call or write today so we can evaluate your potential claim.
About the author of this article: Thomas Ryan