Wrongful Death Attorneys in New York
When someone dies because of the reckless or negligent acts of another it is considered a wrongful death under New York law. Families are entitled under the law to recover financial compensation from wrongdoers to help cope with the tragic loss of a loved one.
For over 30 years, the personal injury lawyers at Powers & Santola, LLP, have been helping families in Albany, Syracuse, Rochester and surrounding communities in upstate New York obtain full and fair compensation in wrongful death cases involving medical negligence, motor vehicle accidents, and worksite accidents. Our skilled and experienced trial lawyers focus not only on building powerful legal cases, but also bringing compassion to our work in order to help families heal and move forward after the loss of a family member.
Wrongful death can unfortunately result from medical malpractice committed by New York physicians, nurses, hospitals and other medical providers. While doctors and other medical professionals work hard and try to do their best in treating patients, they can and do make mistakes that fall below the standard of care expected of them under the law.
Examples of medical malpractice in New York that can cause a wrongful death include:
- A failure to timely diagnose an illness
- A misdiagnosis of a medical condition or illness
- A botched surgery
- A failure to inform a patient of the risks associated with a medical procedure or course of treatment (duty of informed consent)
- Improperly caring for a patient by choosing an inappropriate treatment, or negligently administering the correct treatment
- Medication errors
To prove medical malpractice under New York law, you need to demonstrate that: (1) one or more health care providers failed to act in accordance with accepted medical practices (breached their legal duty of care); (2) your loved one died as a result; and (3) the malpractice was a direct and substantial cause of the death.
Determining whether you have a viable medical malpractice/wrongful death case requires an extensive review of your loved one’s medical history. Our wrongful death attorney will start this by having an extensive interview with you. If it appears your case has merit, your attorney will obtain and review all relevant medical records, as well as relevant medical literature to determine the appropriate standard of care when the death occurred.
We then retain the best and most appropriate independent medical experts available to review your loved one’s medical file and to provide us with an objective assessment of your case. Only then can we tell whether you have a viable medical malpractice/wrongful death case. Our office pays all of the fees for obtaining medical records and all of the costs for retaining the medical experts necessary to review your file. We never charge a fee for determining whether your case has merit.
Hospitals can be liable for medical malpractice as well. They are responsible for the actions of their staff employees, including nurses, technicians and paramedics. Examples of medical negligence in a hospital setting include:
- Providing prescribed medication to the wrong person
- Administering the incorrect amount of prescribed medication
- Using improperly functioning medical devices, such as a defibrillator with a dead battery, or an intravenous pump with a dislodged valve
- Providing substandard post-op care that leads to a fatal infection
- Keeping a dangerously incompetent doctor on staff
Proving hospital malpractice in a wrongful death lawsuit is similar to proving a physician committed malpractice. Hospital malpractice requires evidence that the medical care provided fell below the accepted level of care under law, and that the malpractice was a direct and substantial cause of the death.
Motor Vehicle Accidents
Motor vehicle collisions regrettably occur all too often on New York highways and roads. Some, especially those involving passenger vehicles and tractor-trailer rigs, can be fatal. Proving negligence in a car crash case involves demonstrating that the driver of a vehicle acted carelessly under the circumstances, such as driving too fast or too aggressively, failing to pay attention to the road, failing to brake quickly enough, failing to yield to oncoming traffic, or driving under the influence of drugs or alcohol.
In addition to these factors, accidents involving tractor-trailers can result from faulty brakes or other shoddy maintenance of the truck, an improperly loaded trailer, or an overly tired driver who has exceeded permitted time behind the wheel without a break under highway safety regulations.
Our attorneys have decades of experience investigating car accidents and truck accidents. We track down all the relevant facts to establish liability of other drivers.We have comprehensive knowledge of New York and federal rules and regulations regarding truck driver and trucking company negligence. By carefully investigating car and truck accidents and being thoroughly prepared, our attorneys are in a solid position to negotiate on behalf of our clients.
If a death occurs at the workplace, such as a construction site, workers’ compensation benefits are available to the deceased worker’s family. Fault is not at issue when seeking workers’ compensation from an employer. However, a third party may be liable for the wrongful death. For example, a construction work site usually has multiple contractors and company representatives on the site at any given time. Their careless actions may be the cause of your loved one’s death.
Examples of worksite accidents involving wrongful death caused by third parties include:
- Falling objects
- Shoddy or nonexistent safety practices
- Explosions resulting from mishandling or the storage of hazardous materials
- Defective or poorly maintained power equipment
We have extensive experience handling New York worksite accident cases. We know the issues and know how to dig for all relevant facts in establishing who was at fault for causing the death of your loved one.
Who Can Bring a Wrongful Death Claim?
A wrongful death lawsuit in New York can be brought by only the “personal representative” of the decedent’s estate. The personal representative can be an executor named in a will. If no executor is named, a person would need to be appointed as an administrator of the estate by the Surrogate’s Court in the county where the decedent lived at the time of death. An attorney from Powers & Santola, LLP, can help with this process.
How Is a Wrongful Death Recovery Established?
A wrongful death claim requires showing that the decedent’s death was caused by the “wrongful conduct or default” of another, which would have allowed the decedent to pursue a cause of action if he or she had not died.
In this sense, a wrongful death action requires proof that is similar to a personal injury claim. The evidence will depend on whether the death involved medical negligence, a construction accident, auto crash, slip and fall or other case type.
The decedent’s comparative fault also will be a factor. The party being sued, or the defendant, may claim the decedent’s own negligence led to his or her death and that any recovery should be reduced in proportion to this degree of fault.
A survival action for pain and suffering requires showing that the decedent was conscious for a period, however brief, between injury and death. The severity of the injuries and duration of the pain and suffering are among factors considered.
What Can Be Recovered in a Wrongful Death Claim?
A wrongful death lawsuit can seek the recovery of “fair and just compensation” for the pecuniary injuries that the distributees have sustained due to the death. These injuries generally include the loss of support, assistance and possible inheritance. They do not include compensation for a survivor’s sorrow from the loss.
Damages are awarded “in proportion to the pecuniary injuries” suffered by the distributee. So, the amount awarded individually may depend on many factors, including the relationship to the decedent. For instance, a spouse may seek a recovery for the loss of the decedent’s services around the home, while a child may seek a recovery for the loss of a parent’s guidance.
An expert typically is called on to evaluate a case and provide an opinion on matters such as the loss of a decedent’s future earnings. Damages cannot be based on mere speculation.
Additionally, a wrongful death lawsuit may seek the recovery of:
- Reasonable medical expenses arising from the injury which led to the death
- Reasonable funeral expenses paid by the distributees
- Punitive damages (if the decedent could have recovered those damages if he or she had survived).
A settlement of the wrongful death claim must receive court approval. The amount of the settlement is placed in a trust account and then distributed. If a party is a minor, incompetent, incarcerated or suffers from a disability, a guardian ad litem may be appointed to protect the party’s interests.
Contact Our Wrongful Death Lawyers in Albany, Syracuse & Rochester
Call Powers & Santola, LLP., at 518-465-5995 or contact us online to schedule a free consultation in either our Albany, Syracuse, or Rochester office. We can help you assess and understand your legal rights.
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Thank you Laura, Margie, Lisa, Teresa and all of you who helped us! We absolutely can’t thank you enough. You are truly the best at what you do, and I’m so thankful you took my call that day 6 years ago. With love and warm wishes for all of you, thanks from the bottom of my heart.
Albany Practice Areas
Medical Malpractice | Wrongful Death | Delayed Cancer Diagnosis | Workplace Accident | Personal Injury | Product Liability | Nursing Home Abuse | Sexual Abuse | Child Victims Act | Auto Accidents | Premises Liability | Construction Accident | Catastrophic Injuries