If a Virginia resident dies because of the negligence of another person or entity, their loved ones can file a wrongful death lawsuit.
While filing a lawsuit might not help with the emotional side of things, it can provide financial relief to help the family get back on their feet.
The Virginia Code has specific guidelines that cover how you should file for wrongful death.
In this article
Always speak with a qualified attorney before you make any lasting decisions in your case.
What is a Wrongful Death Lawsuit?
Along with workers’ compensation and medical malpractice, wrongful death lawsuits are a type of personal injury law.
The Virginia Code defines wrongful death as a loss of life due to the negligence or wrongful actions of another person or entity.
These actions can range from a car accident to a business forcing employees to work in unsafe conditions.
When a wrongful death occurs, the individual’s immediate family is eligible to sue for damages.
However, you must do so within two years of the individual’s death.
Generally speaking, damages is a broad term that covers a wide range of physical and emotional topics.
As a few common examples, wrongful death lawsuits can include claims for:
- Emotional or psychological distress caused by the absence of the decedent.
- Compensation for the lack of income from the decedent, and/or the care and services provided by the decedent.
- Expenses of care, treatment, and hospitalization of the decedent as the result of the injuries sustained prior to death.
- Funeral expenses.
- Punitive damages for recklessness or negligence.
As simply one example of a case that might qualify, traffic accidents are one of the most common causes of wrongful death in Virginia.
Usually, these cases are caused by reckless or distracted drivers. However, DUI-based accidents are also fairly common.
Medical malpractice, while slightly less common, is also a significant area of wrongful death law.
Medical malpractice is an umbrella term for the mistreatment of a person who was receiving medical care.
It encompasses misdiagnosis, medical procedure errors, and many other medical issues.
Common Wrongful Death Questions
Wrongful death is an incredibly complex area of law, so it’s natural for people to have questions about the process.
We’ll answer a few of these commonly asked questions below.
However, it’s highly recommended that you seek out a consultation with an attorney for any questions you might have about your particular case.
Who can file a wrongful death lawsuit?
In other states and localities, such as D.C. and Maryland, “true” wrongful death claims are allowed.
This means that a claim may be brought on behalf of the decedent’s estate, as well as by any surviving family members.
On the other hand, Virginia only allows claims to be brought by the surviving family members.
This is because the Virginia Code doesn’t permit a victim’s personal injury claim to continue after their death.
Specifically, Virginia Code § 8.01-53 lists the people who can and cannot benefit from a wrongful death lawsuit.
According to this code section, the right to claim a wrongful death award goes in the following order:
- First, the surviving spouse, children, or grandchildren of the deceased.
- Then, the parents, brothers, or sisters of the deceased, or any other relative that is primarily dependent on the deceased.
- Finally, the person or people who would inherit the estate of the deceased.
It’s important to note that if the court finds that the parents had abandoned the deceased during their childhood, the court can decline to give the award to the surviving parents.
Who can be sued for wrongful death?
Depending upon the details of your wrongful death case (i.e. how/where/when the person died), you may be. able to sue a number of entities.
Some examples include:
- Any individuals at fault for the accident (such as a reckless driver).
- The manufacturer of any faulty equipment.
- Any relevant government agency (such as if they failed to properly inspect a site).
- The distributor or installation specialist of the faulty architecture, equipment, etc.
- The owner of the property on which the accident took place.
However, when filing a wrongful death suit, there are certain restrictions that establish immunity.
Immunity varies by state and jurisdiction, and therefore certain government agencies, employers, drug manufacturers, and other entities can be exempt from being sued for wrongful death.
Is there a timeline for filing my wrongful death lawsuit?
In Virginia, you need to bring your wrongful death lawsuit before a judge within 2 years of the death of your family member.
If you don’t file the suit in time, the Virginia statute of limitations states that the court can’t hear your claim.
Sometimes, the victim is injured first, then dies at some later point as a result of their injuries.
If there is a pending personal injury suit filed before the victim’s death, the 2-year window to file a wrongful death lawsuit starts on the date of the victim’s death.
How to File a Wrongful Death Lawsuit in Virginia
Two years seems like a long time, but it takes lots of time and resources to file a wrongful death lawsuit.
The more prepared and organized you are, the better.
In general, however, there are four broad “steps” to filing a wrongful death lawsuit:
- Step 1: Hire a Lawyer – The first and most important step when filing a wrongful death lawsuit is to hire an attorney with experience in personal injury law. It’s usually wise to find someone who specializes in the specific complaint you have. For example, certain attorneys specialize in car accidents or medical malpractice suits.
- Step 2: Gather the Necessary Evidence – In order to make a case for wrongful death, you’ll have to prove that an act of negligence or similar action caused your loved one’s death. To do so, you’ll need evidence. You’ll want to talk to your attorney about what evidence you’ll need, but the basics include witness statements and information about the incident.
- Step 3: Assess the Damages – The goal of your case should be to claim certain “damages” caused by the wrongful death. If you’re making a specific claim, you’ll want evidence to back up that figure. For example, you should calculate lost wages, funeral costs, and any medical expenses related to the death. Your attorney should help you with this step, as it’s often fact-specific.
- Step 4: Submit Your Claim – After you gather the necessary information, you and your attorney can file your claim with the relevant entity. Generally, this means submitting a claim with the other person or entity’s insurance.
After you submit your claim, you’ll have to wait for a response from the insurance company, and your case will progress in the general format followed in most personal injury cases.
How Does the Court Calculate Damages?
The point of a wrongful death lawsuit is to make a claim for emotional and financial damages caused by the death of your loved one.
However, calculating those damages is often a complex process of crunching numbers and gathering evidence to back up your claims.
Most often, your “damages” will include a claim based on the deceased individual’s income or other services they performed for dependents.
For example, if the individual was a stay-at-home parent, the calculation of damages would include the cost of services such as childcare, cooking, and housekeeping.
This is because those services are no longer being provided to the dependents as a result of the wrongful death.
The Virginia Code states that the jury in a wrongful death case will award damages that they decide are “fair and just.”
Generally, you will prove this by having an expert witness calculate your damages and present them in court.
This may seem vague, but the code lists some examples of what kinds of damages a jury may award, including:
- Compensation for loss of income, care, or protection that would have been provided by the deceased.
- Expenses for the medical care and treatment for the deceased before their death.
- Funeral expenses.
- Compensation for sorrow, mental anguish, and for the companionship, comfort and advice that will be absent due to the victim’s death (often referred to as “pain and suffering”).
- Punitive damages to “punish” the defendant for destructive practices, either willful or neglectful.
However, keep in mind that you aren’t limited to only these damages.
Instead, you may file for any damages that you can credibly make an argument for in court.
As one final note on damages, Virginia caps medical malpractice claims at a certain amount which changes every year.
As of 2021, this cap is $2,450,000, and will increase by $50,000 every year until 2031.
When a person dies because of the negligence of another person or entity, their dependents can file a claim for wrongful death.
The first and most important step in filing for wrongful death is to hire an attorney who is experienced in personal injury or wrongful death.
Your attorney will help you gather evidence, determine what amount of the suit, and whether you should consider settling before going to court.
Regardless of the circumstances of your case, the important takeaway here is that wrongful death claims are a complex area of personal injury law that you must hire an attorney for.
If you have any questions about your case, or Virginia wrongful death law in general, it’s wise to schedule a consultation with an attorney with experience in resolving personal injury cases.