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Under the applicable statute of limitations, a wrongful death action must be started within two years of the person’s death; after that period, you may be prohibited from filing a lawsuit to obtain any recovery for the expenses and loss this death has caused.
There are some exceptions to this rule. For instance, if the defendant is being pursued criminally for the same occurrence which caused your loved one’s death, you can have at least one year from the termination of the criminal action to file a lawsuit, even if the two-year period has already expired. Also, victims of the 9/11 terrorist attacks were given an additional six months by law to file suit.
In some cases, the court may allow a late filing, if the circumstances justify it and the defendant is not unduly prejudiced. Although it is understandably a difficult time for you if you have lost a loved one, you should always try to contact an attorney well before the statute of limitations has expired in order to preserve and protect your rights.
Yes. If the jury decides the deceased was also negligent, they will assign a percentage of fault to each party. Any judgment entered against the defendant will be reduced proportionately, but the concept of comparative negligence will not prohibit you from filing a lawsuit or obtaining a recovery.
New York does not presently put a cap on the damages that may be recovered in medical malpractice cases, as many other states do. However, the wrongful death statute does state that if the death was a result of medical malpractice or dental malpractice, then the judge or jury is supposed to consider the taxes the deceased would have paid on his or her earnings. So while you may be able to recover for the loss of future earnings the decedent would have earned, presumably the court will discount that amount in medical malpractice cases.
A wrongful death lawsuit is generally brought by the personal representative of the estate for the benefit of the people entitled to a distribution of the decedent’s estate. This may include the parents of the deceased in the case where there is no spouse or children. Also, non-marital children may be considered distributees of the decedent’s estate for the purpose of a wrongful death recovery. The damages recovered are distributed to the distributees of the estate in proportion to the injuries suffered by them.