It always hurts, when a family member dies suddenly. You always want to know why they died—what they died from, and those sorts of questions can help you to get closure. But what happens when somebody is responsible for your family member’s death? How do you get closure then?
To reach closure, you can reach out to a wrongful death lawyer so that they can help you to investigate the circumstances surrounding your loved one’s death. A good lawyer, can help you to determine whether there was negligence in the deceased person’s care that caused them to pass on.
What kind of defenses can you expect to see, when you’re filing for a wrongful death of your family member or loved one? We’re here to give you some insight.
Expiration of the Statute of Limitations
There’s a statute of limitations on filing a lawsuit that relates to cause of action. This is the first defense to watch out for. Wrongful death claims that arise from accidents, you have two years to file a lawsuit. If it’s due to medical malpractice, the statute gets an extra year and you’d have three years to file.
Note that these dates are from the date the person died on.
There are a few exceptions to the statute of limitations, like the discovery rule could extend the statute of limitations. The discovery rule implies that something came to light—like previous negligence that the family did not know about, or other malpractice lawsuits of similar nature on the physician’s record. This can extend your statute to file, as it may cause an investigation.
The statute of limitations can sometimes be shorter, too. Especially if you’re involved with the death of government entities, or have a government tie. You’d need to notify the government with a claim of wrongful death within six months of the date of death.
Another common defense is that the party that is now deceased engaged in a physical altercation where someone, typically the person you’re suing, was defending themselves. The party may claim that the decedent was a risk to others and that they had to stop them from harming anyone else.
Even if this is true, they must prove that they had no other choice than to stop the person; their actions were justified and reasonable, and they couldn’t reach a safe conclusion without excessive force.
Waivers and Releases That Assume Risk
Another common defense is that the deceased person signed a waiver or release of liability. That means they were aware they might be injured or die, and it was naturally associated with the activity. This is often seen in skydiving, bungee jumping and other high-risk activities.
However, the waiver doesn’t release the people in charge of the activity from all liability. If negligence can be proven, or intentional tampering to equipment that later caused the death of the decedent, there’s a case.