Individuals come to our office at the worst time of their lives. Whether it be due to medical malpractice, a semi-truck accident or whatever the cause may be, a loved one has just passed away due to someone else’s negligent actions. Naturally, the family of the decedent wants answers when a tragedy occurs. They want answers as to why an accident occurred, how it occurred and how it can be prevented from occurring to another unsuspecting innocent family. Part of every good wrongful death lawyer's job is to ensure that the family gets the answers to these questions in addition to financially stability. When pursuing answers for the family the wrongful death claim begins and there are several stages to any successful claim.
1. Determining the Heirs: The first step in a claim is to determine who the appropriate heir to assert the claim is. In Kansas, this is determined by K.S.A. § 60-1902. To determine the appropriate heirs to a claim, things like whether the decedent was married and whether they had children will be considered among other considerations. It will be up to the heirs to engage a wrongful death lawyer. Many times questions of attorney fees will be a concern at this stage. Heirs may not have the ability to pay a lawyer but are still wanting to pursue a claim. Nearly all wrongful death lawyers accept cases on a contingency basis. In other words, heirs never pay an attorney unless the attorney wins their case. After the appropriate party to pursue the claim is determined, next is to start an investigation to determine who all could be responsible for the cause of the wrongful death.
2. Investigation of the Claim: Investigation of a claim is one of the most important parts of a wrongful death lawyer's job. Often a lawyer may hire other professionals like a private investigator, accident reconstructionist, medical expert or other expert relevant to the claim during the investigation stage of a claim. The investigation is largely going to center around the type of claim. In a medical malpractice scenario, there could be many health care providers and the investigation will help determine who all was involved and who was at fault. In a construction site accident scenario, there could be numerous contractors and subcontractors and the investigation will determine at the involvement of each. For a truck wreck scenario, the trucking company, the driver, and various levels of leases will need to be investigated for the claim. The investigation to find the responsible parties should be done as soon as possible. Individuals that are responsible for the death of another my try to destroy evidence or hide facts relevant to pursuing the claim. The quicker a party retains a lawyer to start uncovering the cause of the death the better for the claim and the better for obtaining answers as to why the death occurred.
3. Determining Damages: Damages are another way of saying, "What can the wrongdoer in a claim do to make the family whole again?" In reality, no one can bring back a lost loved one. No one can take the place of a father reading a bedtime story to their kids; No one can kiss a child's skinned knee after they have fallen like a mother can. No one can make a family whole again. When someone is killed due to another’s reckless actions a lawyer is left with limited ability to really make a family whole again. All a lawyer can really do is seek monetary compensation from the wrongdoer and make it so costly that the wrongdoer thinks long and hard about ever engaging in the type of reckless conduct that fractured a family and cost someone their life. Each state has a specific law that lays out the damages allowed when pursuing a wrongful death claim. In Kansas, damages are determined by K.S.A. § 60-1904. If you are experiencing the tragic loss of loved one because of someone other party’s carelessness or negligence and you wish to discuss your potential claim, please call Roth Davies, LLC.
What is the Law on Wrongful Death in Kansas? The law varies by state and even neighboring states can have vastly different laws when it comes to wrongful death claims. The advantages and disadvantages of where a case is filed can be numerous and have a dramatic effect on the outcome for the victims. Kansas’ wrongful death statute can be found at K.S.A. 60-1901. In Kansas, wrongful death is understood as not a separate cause of action. Instead, it is the claim that the person who died could have brought for damage to them had they lived. The necessary elements are: 1) death of a person and 2) caused by “wrongful act or omission of another.” The following discusses some of the details of bringing a claim under this statute.
Who Can Bring a wrongful death lawsuit in Kansas? Generally, lawsuits are brought by the injured party and are allowed to continue if that party dies. However, wrongful death claims are different. K.S.A. § 60-1902 will only allow an “heir at law” of the deceased to initiate a wrongful death lawsuit. This is not the estate of the deceased but their relative. An heir at law is a spouse or blood relative of the deceased individual. “The estate” of the deceased refers to the estate’s executor. The executor is in charge of dealing with the deceased individual’s affairs, debts, and other business. This distinction can result is some odd findings, as is what happened in the case Lewis v. BHS College Meadows. In Lewis, a man died after he received negligent medical treatment which prompted his daughter to bring both a claim for medical malpractice and wrongful death. The court held that the she could only bring the wrongful death claim (as she was heir at law to the deceased) but she couldn’t bring the medical malpractice claim as only the decedent’s estate can maintain an action that an individual could have originally brought while living.
Any heir who has sustained a loss by reason of the death may bring the wrongful death suit. For these purposes, the meaning of “heir” is the same as it would be under property and estate law: one who would receive property or the estate from a person at their death because of their relationship. This can include the surviving spouse, parents, grandparents, children, and other relatives who would be the decedent’s heir at his death. However, this does not include the administrator of the decedent’s estate. Therefore, if a parent’s parental rights have been severed for some reason, this also ends the right of her former children to bring a wrongful death action upon her death.
The “loss” requirement is usually not an issue. However, where children had no “meaningful relationship” with their estranged birth mother’s child and there was little to no evidence of relationship or grief, the court suggested that this might not be sufficient to fulfill the “loss” requirement
Who can receive compensation? There is an additional difficulty for plaintiffs in a wrongful death cases; how to divide any compensation among the heirs. K.S.A. 60-1905, requires the awarded damages be apportioned to the heirs at law according to “the loss sustained by each of the heirs”. This is true even if an heir didn’t take part in the litigation (meaning they didn’t help retain an attorney, gather evidence, testify, etc). However, this can be addressed by having that heir sign a waiver of their portion of the recovery or very simply, have all heirs take part in the lawsuit. The heirs that are most affected by the loss of the decedent will generally receive the most compensation. For example, a spouse will generally receive more compensation than a cousin.
What causes of death are covered by wrongful death claims? K.S.A. § 60-191, permits an heir to recover when the decedent’s death was a result of “wrongful acts or omissions” of another. This means, in Kansas, any careless action that causes a death of another, the basis of a wrongful death lawsuit is formed. Intentional harms can also be a basis for a wrongful death lawsuit. For example, under K.S.A. § 60-1901 both a car accident and an intentional shooting that result in a death can constitution wrongful death actions.
A specific type of conduct that can warrant special attention is governmental actions. Usually, under the term sovereign immunity, both the federal and state governments are immune from being sued by persons for monetary damages. However, both the federal government (via the Federal Tort Claims Act, 28 USC § 2671) and Kansas (via the Kansas Tort Claims Act, KSA § 75-6101) have waived a portion of their sovereign immunity in certain situations. Common wrongful death suits against the government includes medical practice by VA doctors and vehicle accidents caused by a state vehicle. However, their sovereign immunity hasn’t been waived completely by either act which means not all wrongful death cases permit an imposition of liability. Examples of this include actions of law enforcement that are covered by qualified immunity and discretionary functions by government officials.
What Damages Are Available In A Kansas Wrongful Death Claim? The verdict in a wrongful death action is itemized by the trier of fact to reflect amounts awarded for:
(1) non-pecuniary damages;
(2) expenses for the care of the deceased caused by the injury;
(3) other pecuniary damages, such as lost income.
The elements of damage for which recovery may be awarded include:
(1) mental anguish, suffering or bereavement;
(2) loss of society, companionship, comfort, or protection;
(3) loss of marital care, attention, advice or counsel;
(4) loss of filial care or attention;
(5) loss of parental care, training, guidance, or education; and
(6) reasonable funeral expenses.
Punitive damages are not recoverable in wrongful death actions. Punitive damages are recoverable, however, as part of a survival action. Along with the wrongful death cause of action, the estate of a decedent can bring a survival action for decedent’s claimed damages for both economic and non-economic, arising out of defendant’s negligence. It is this survival action that serves as the vehicle for a punitive damages claim.
What Time Limitations Are There On Kansas Wrongful Death Claims? The statute of limitations for wrongful death actions is two years from the date of death. Although this time may be shortened, it will not be extended. Because the wrongful death action is based on the rights of the decedent, if the statute of limitations has run out on the decedent’s original cause of action, an heir cannot bring a wrongful death claim after their death. For example, where a man had a personal injury action against a company, did not bring it, and subsequently died as the result of the personal injury; his wife could not bring a wrongful death claim because the statute of limitations on his personal injury claim had run out by the time she filed the wrongful death claim.
In medical malpractice, a patient’s survival for more than four years after the alleged malpractice destroys any wrongful death claim heirs might have on the patient’s death. This is even though the patient’s death is highly likely to have been caused by malpractice.
Finally, only one action can be brought against any one defendant for the death of a particular person. Any heir who is not a part of the original action can join the action (in legal terms, “intervene”).