Wrongful Death in Nebraska
The death of a loved one is a tough time for a family. Besides the emotional turmoil, there may be mounting medical bills and funeral costs, lost wages, and the loss of the care and companionship of the deceased. Feelings of grief may be compounded when someone else’s negligence caused the death. When faced with the possibility of filing a lawsuit based upon a wrongful death in Nebraska, people generally ask five questions:
1. What is meant by “wrongful death”?
2. How do you prove it?
3. Who may file a wrongful death lawsuit?
4. What kind of damages may be received?
5. Is there a time limit for filing a wrongful death lawsuit?
“Wrongful Death” in Nebraska Defined
The current Nebraska Revised Statutes chapter 30, section 809 defines “wrongful death” as the death of a person caused by “the wrongful act, neglect, or default of any person, company, or corporation” such that if the person had not died, he or she could have recovered damages for personal injury. Essentially, in a wrongful death lawsuit, a decedent’s representatives bring the lawsuit to protect the rights of 1. The deceased; 2. The deceased’s estate; and 3. Loss suffered by the deceased’s family members.
Wrongful death lawsuits are often thought of as synonymous with personal injury lawsuits but there are two important differences. First, a personal injury lawsuit is brought by the injured party him or herself. If the injured party has died, the representatives of the estate bring the personal injury lawsuit on behalf of the deceased in order to recover losses suffered by the deceased. A wrongful death lawsuit, however, is brought by the deceased’s next-of-kin in order to recover for the losses they themselves have suffered. Second, recoverable damages are different. This is important because in wrongful death lawsuits in Nebraska, the next-of-kin cannot recover damages based upon the deceased’s pain and suffering prior to death. These damages are recoverable based upon personal injury because Nebraska courts have held that a claim for personal injury survives the death of the injured party. This means that the representatives of the deceased’s estate can take up the deceased’s personal injury case on behalf of the deceased. Thus, the pain and suffering of the deceased will not be recoverable by the next-of-kin in a wrongful death lawsuit but may be recovered by the estate in a personal injury lawsuit.
How do you prove it?
Much like in a personal injury lawsuit, the deceased’s representatives will need to prove that 1) The party being sued acted in a negligent manner; 2) The negligence caused the deceased’s death; and 3) The representatives can prove damages.
Proving that the party being sued acted in a negligent manner and that the negligence was the cause of the deceased’s death can be fact-intensive and difficult. For example, people occasionally contract staph infections following surgery. If surgery is successful and a person is transferred to a nursing home facility, only to later pass away from a staph infection, either the hospital or nursing home may be liable under Nebraska’s wrongful death statute. In order to prevail, the deceased’s representatives will have to prove that 1) The hospital or nursing home was negligent; 2) The negligence resulted in the deceased contracting the staph infection; and 3) That the staph infection was the cause of death. One hand, it could be rather easy to prove these three elements. The doctor may have spilled a vial of staphylococcus bacteria onto the deceased while in surgery, simply decided not to correct it, and then at the nursing home, the otherwise healthy person died of the infection. On the other hand, both the hospital and nursing home may have exceeded their duties in all aspects of the deceased’s care and at the time of death, the deceased may have had not only the staph infection but also pneumonia and a violent strain of the flu, none of which clearly caused death. Proving negligence and that the negligence was the cause of death would be easy in the first example but near impossible in the second.
In addition to proving negligence, the representatives will also have to show damages such as medical and funeral bills, lost wages, and loss of companionship. The attorneys at Berry Law Firm can help family members sort through these complicated questions.
Who can file a wrongful death lawsuit?
In a wrongful death suit, the next-of-kin to the deceased brings the lawsuit. This could be the husband or wife, children, grandchildren, or even parents for the loss of a child. A wrongful death lawsuit can be brought against the negligent party, even if that party has also passed away. For example, if the driver of a car is negligent and causes an accident in which both the driver and passenger die, the passenger’s next-of-kin may bring a wrongful death lawsuit against the driver’s estate. Wrongful death lawsuits in Nebraska can also be filed against negligent companies. Choosing against whom to file a lawsuit can be complicated. Call the attorneys at Berry Law Firm to discuss this issue in more depth.
What kind of damages may be received?
Even if a deceased’s next-of-kin prove that the party being sued acted negligently, and that the negligence was the cause of the death, they will still need to prove damages. In Nebraska, recovery for the next-of-kin has been limited to “pecuniary” damages, meaning calculable monetary damages. This includes, but is not limited to:
-Reasonable funeral costs;
-Lost compensation the deceased likely would have received had he or she survived;
-Loss of care and companionship by the deceased; and
-Value of household care duties, such as cooking, cleaning, repair work, and child care, that would have been performed by the deceased.
While it is difficult to put a dollar figure to the value of a loved one’s life, a court will look at many different factors when determining damages. Such factors include medical bills and funeral costs, the deceased’s age and health, education level, work history, and expected salary or wages, and the level of care and companionship the deceased and family shared. A judge or jury will take into consideration all of the factors analyzed when determining pecuniary damages.
It must be noted that the list of damages in a wrongful death suit does not include pain and suffering on behalf of the deceased. This is important because in wrongful death lawsuit in Nebraska, the next-of-kin cannot recover damages based upon the deceased’s pain and suffering prior to death. The estate can recover these damages based upon personal injury because Nebraska courts have held that a claim for personal injury “survives” the death of an injured party. This means that the representatives of the deceased’s estate can take up the deceased’s personal injury case on behalf of the deceased. Thus, the pain and suffering of the deceased will not be recoverable by the next-of-kin in a wrongful death lawsuit but may be recovered by the estate in a personal injury lawsuit.
Time limit to file a wrongful death lawsuit
According to Nebraska Revised Statute chapter 30, section 810, the deceased’s next-of-kin have two years from the time of death to file a wrongful death lawsuit.
The death of a loved one is a time for reflection and mourning. Unfortunately, it can also be a time of lost income, missing care and companionship, and mounting bills. The attorneys at the Berry Law Firm understand that wading through complicated legal procedures following the death of a loved one can be overwhelming. They have the knowledge, experience, and compassion necessary to help guide family members through a difficult time.
Wrongful death in nursing homes
While a person’s retirement years are supposed to be comfortable and relaxing, the negligence of a nursing home can instead turn those years into tragedy.
Nursing home caregivers have the duty to keep their residents safe. In most cases, this duty is met, but sometimes poor training, lack of supervision, or inadequate funding result in a wrongful death. If a nursing home’s negligence results in a death, that facility may be liable to the deceased’s family member in a wrongful death lawsuit.
Negligence resulting in death in a nursing home commonly stems from:
-Misdiagnoses of medical conditions
-Failure to call for outside medical support
As with other wrongful death suits, the deceased’s family will need to prove that the nursing home acted in a negligent manner and that the negligence resulted in death. Both of these elements are required and if one cannot be proven, the family will most likely lose the lawsuit. For example, if the family can prove that a nursing home staff member was physically abusing the deceased, but cannot prove that the beating was the cause of death, the family will most likely not prevail in a wrongful death lawsuit.
If the family can prove both negligence and that the negligence was the cause of death, the family may be entitled to:
-Medical and funeral bills resulting from the negligent behavior
-Loss of companionship
-Any wages or other financial benefits that the deceased may have received had he or she not died.
Other types of wrongful death lawsuits:
Keep in mind that if the family members of the deceased can prevail in a wrongful death lawsuit, the deceased’s estate may also be able to prevail in a personal injury lawsuit. This is a complicated distinction but the attorneys at the Berry Law Firm are happy to explain both types of lawsuits and answer any questions that arise.