Wrongful Death Claims in Illinois

Wrongful death claims are filed when someone can be held legally responsible for the death of another person. Typically, wrongful death claims are brought as a result of the negligence of the responsible party. However, in some circumstances, wrongful death claims can arise out of other situations, such as an intentional act of violence or a product defect where the manufacturer is held strictly liable, and negligence is not a requirement.

Two of the most common situations that lead to wrongful death as a result of negligence include medical malpractice and personal injuries.

Medical Malpractice Wrongful Death

Most people expect that when they visit their doctor or another medical professional, ailments will be resolved or, at the very least, not made worse. It’s also completely understandable that we all expect doctors to not make mistakes that cost people their lives. The unfortunate reality is that this happens more than anyone would like to consider. The most common causes of medical malpractice wrongful deaths include surgical errors, medication errors, misdiagnosis, failure to diagnose, and delayed diagnosis.

To be successful in a medical malpractice wrongful death claim, the plaintiff must prove that the medical professional was negligent. To do this, the following elements must be proven:

Duty. First, you must prove that the medical professional owed your loved one a duty of care. All medical professionals are required to treat patients with a certain level of care. If there was a doctor-patient relationship between the professional and your loved one, this duty existed. This element is fairly easy to prove, as it’s usually clear cut—did your loved one agree to be treated by the doctor, and did the doctor agree to treat them?

Breach. If the doctor’s treatment fell below the standard level of care, this is a breach. To determine this, the test is typically what a doctor with similar training and skill would do in a similar or identical circumstance. If your loved one’s doctor deviated from what a doctor of similar skill would have done, you may be able to prove that a breach occurred.

Causation. You must also prove that your loved one’s death was a result of the doctor’s negligence. If the doctor was negligent and your loved one passed away but it had nothing to do with the negligent behavior, this isn’t enough for a successful medical malpractice claim. There must be actual causation.

Damages. Finally, you must prove that you experienced damages as a result of losing your loved one, such as medical expenses, pain and suffering, loss of consortium, and loss of companionship.

Personal Injury Wrongful Death

Personal injury wrongful deaths follow the same format as medical malpractice cases—all 4 elements must be proven. The most common types of personal injury wrongful deaths result from slip and falls and car accidents.

Statute of Limitations

All civil claims must be filed by a certain deadline. For wrongful deaths resulting from personal injuries and medical malpractice in the state of Illinois, the case must be initiated within 2 years of the decedent’s passing. If the death was due to an intentional violent action, the statute of limitations is extended to 5 years from the date of the decedent’s passing.

Exceptions
In certain circumstances, the wrongful death statute of limitations is different.

Plaintiff is a Minor. If the plaintiff—the person initiating the case—is under the age of 18 when the wrongful death occurred, the statute of limitations does not start to run until they turn 18. This means that they have until they are 20 years old to file their claim, regardless of how old they were when the wrongful death occurred. This means the statute of limitations could theoretically end up being almost 20 years.

Defendant Criminally Convicted & Ordered to Pay. If the defendant in a wrongful death claim has been convicted of a criminal charge as a result of the death and ordered to pay restitution into an escrow account, the statute of limitations will not begin to run until the escrow account has been set up.

Government. If the defendant is a government entity, such as a public hospital or a school district, you will probably have significantly less time to file a claim. You will also need to give them notice of your intent to sue. If you find yourself in this situation, you should speak with a lawyer as soon as possible to ensure you don’t miss your deadline and lose out on a chance to pursue monetary compensation.  

Discovery. In many circumstances, if the cause of death wasn’t linked to the medical professional’s negligence or the accident that caused the injury until much later, the statute of limitations won’t begin to run until this information is discovered, as long as the lack of discovery was reasonable.

In the state of Illinois, the people who are permitted to file a wrongful death suit are limited. All wrongful death suits must be brought by the “personal representative” of the deceased. The personal representative will be appointed by the court if the deceased did not have a will. It is usually a close family member of the deceased, and the surviving spouse is typically given preference to be appointed as the personal representative. To be appointed as the personal representative, the individual must first open an estate for the deceased and for the probate process.

The personal representative is not the only person who can recover the damages, though. Recovered damages are dispersed amongst the surviving spouse and the decedent’s next of kin. Next of kin refers to a surviving spouse, children, parents, and other immediate family members.

A survival action is essentially a personal injury claim that is filed on behalf of the decedent. In some states, this right is terminated upon their death, but the survival act in Illinois keeps this possibility alive. The representative of the estate can file this action. Compensation that can be awarded through the survival act includes medical expenses, lost wages, pain and suffering, property damage, and more. This compensation is for what the decedent experienced between the time of their injury and the time of their passing, even if they only lived for seconds after the accident.

It's not uncommon for individuals to get into car accidents and not pass right away. When this happens, extensive medical expenses can be incurred, and pain and suffering may be inevitable. It’s only fair that the family of the deceased should be permitted to recover some of these damages.

If death was immediate, a survival action will not be possible.

Most wrongful death lawyers don’t charge anything up front; they only get paid if they win or settle your case. This is known as operating on a contingency fee basis. The lawyer’s payment is contingent upon the outcome of the case. If the case is settled or won in court, a percentage of your monetary award will be paid to the lawyer, typically between 30 and 40 percent. This might sound like a lot, but it’s always important to consider that there is essentially no financial risk to you, as you will not be charged if the claim is not successful.

There are a lot of confusing aspects to filing a wrongful death claim, but that’s where a skilled professional comes in. Through a wrongful death claim, you can recover the compensation you need and deserve. The Illinois wrongful death lawyers at Morgan & Morgan have been handling these types of claims for decades. All our lawyers have significant experience in every step of the process, including negotiating and litigating. While most cases settle outside of court, we will push for the maximum amount of compensation and take your case all the way to trial if necessary. Contact Morgan & Morgan today to schedule a free consultation.