If you recently lost a loved one in the Albany area, you may be wondering if it would be appropriate to file a wrongful death claim. To determine whether a wrongful death lawsuit is appropriate, it is important to have an attorney in Albany assess the particular facts of your case. In the meantime, the following are some issues you can consider that can help to clarify whether or not a wrongful death lawsuit could make sense.
Which is the Right Type of Claim to File: Personal Injury, Survival Action, or Wrongful Death?
First, you may be wondering about the differences among personal injury cases, survival actions, and wrongful death lawsuits — and whether you can file all three types of claims or whether you will only be able to file just one. In general, personal injury cases can only be filed by the injured person. As such, personal injury cases are not appropriate when a person has died from their injuries.
Both survival actions and wrongful death lawsuits can be appropriate when a person has sustained fatal injuries. Survival actions are for damages between the time of the deceased’s injury and their death, while wrongful death lawsuits allow families to recover damages related to the deceased’s death. Depending upon the circumstances, it may be possible to file a survival action and a wrongful death lawsuit.
What Types of Injuries Can Give Rise to a Wrongful Death Claim in Albany?
Wrongful death lawsuits can be appropriate in many types of injury situations, such as:
- Medical errors;
- Construction accidents;
- Car accidents;
- Truck accidents;
- Nursing home abuse cases; and
- Birth injuries.
Am I the Person Who Should File the Wrongful Death Lawsuit?
Under New York wrongful death law, a wrongful death lawsuit may be appropriate given the circumstances of a loved one’s death, but you might not necessarily be the person who is required to file the lawsuit and who should be named as the plaintiff in the case. New York’s wrongful death statute requires that the personal representative of the deceased’s estate file the lawsuit. If you are not the personal representative of the deceased’s estate (that is, if you are not the name executor), then you will need to determine who is the personal representative of the estate in order to ensure that the lawsuit moves forward. If you are the personal representative of the estate, you may be eligible to file the wrongful death lawsuit yourself.
It is important to be clear that, even if you are not the named executor, any damages that the plaintiff is awarded in a wrongful death lawsuit can go to the deceased’s survivors. Accordingly, even if you cannot file a wrongful death lawsuit yourself, a wrongful death lawsuit may still be appropriate and essential for seeking compensation for yourself and your other close family members.
Ensuring that a Lawsuit is Filed Before the Statute of Limitations Runs Out
A wrongful death lawsuit in Albany will only be appropriate — and permitted — if the statute of limitations has not run out on the case. Most wrongful death lawsuits in New York have a two-year statute of limitations, and the clock on the statute of limitations will begin ticking on the date of the deceased’s death. There are some circumstances, however, where the statute of limitations can be paused or “tolled” for a certain amount of time. When a criminal case is pending against the defendant for the death, you will have one year from the end of the criminal case to file a wrongful death claim. In wrongful death cases arising out of medical malpractice, the statute of limitations is 2.5 years from the date of the deceased’s death.
Contact an Albany Wrongful Death Attorney for More Information
Understanding wrongful death law in New York and when to file a wrongful death claim in Albany can be complicated. Not only can it be difficult to understand who is eligible to file a wrongful death lawsuit and who is eligible to seek financial compensation, but it can be difficult to fully understand the distinctions among personal injury claims, survival actions, and wrongful death lawsuits. In addition, grieving family members often feel overwhelmed trying to navigate the complexities of the law while still dealing with the emotional toll of the loss of a loved one.
Our experienced Albany wrongful death lawyers know how tough this whole process can be, and our firm is here to help you. The best thing to do is to get in touch with an attorney who can review your case and can provide you with more information about options for moving forward with a wrongful death lawsuit. Contact Powers & Santola, LLP in Albany today for more information about the services we provide to clients in the Capitol Region and throughout Upstate New York.