If you have found this website because you have lost a loved one and therefore have the unfortunate need to understand “wrongful death,” please accept our sincere condolences. The loss of a loved one often leaves family members in shock. Wondering whether a loved one died because of someone’s negligence compounds the already difficult pain.
The loss and concerns over the future can be overwhelming. The idea of working through legal questions is not comforting, but the reality is that failing to properly and timely deal with such matters can have lasting and irreversible effects on the futures of family members.
We recognize the reality:
- There is no good time for handling such things;
- These special legal matters are of a most personal, sensitive and critical nature;
- How they are handled often have everything to do with the quality of life for many individuals.
The questions are endless:
- How to replace income?
- How to pay bills?
- How to deal with insurance companies?
- How to handle a will?
- What must a personal representative do?
- Why doesn’t a power of attorney work?
- How will children be cared for, go to college?
What is “Wrongful Death”?
The Oklahoma wrongful death statute begins with, “When the death of one is caused by the wrongful act or omission of another….” (12 O.S. §1053) By definition, a “wrongful death” in Oklahoma is the result of a “wrongful act or omission of another.”
Wrongful death is not a legal cause of action by itself; rather, it is added onto the legal action for a wrongdoer’s negligence. The textbook definition of wrongful death is often quoted as, “The taking of the life of an individual resulting from the willful or negligent act of another person or persons.” The legal procedure for pursuing a wrongful death claim is very specifically defined, and experienced attorneys will recognize the common pitfalls of mispleading or making an error in submission of a lawsuit and court documents.
Pursing a wrongful death claim can be a long and very involved process, and not just any family member can file a wrongful death lawsuit. Oklahoma law specifically defines who must be the proper party. It is not uncommon for lawyers to work through probate processes, personal representative status hearings, and other legal maneuverings just to properly set up the parties to file the lawsuit.
Oklahoma law defines what recovery can be sought from a wrongful death lawsuit: medical and burial expenses; loss of consortium and grief of the spouse; mental pain and anguish suffered by the deceased; pecuniary (financial) loss; grief and loss of companionship; and punitive damages.
Punitive damages is an amount of money to be paid by the wrongdoer to the deceased’s survivors, with the goal being to punish the wrongdoer and serve as a warning to other potential wrongdoers. Here, like the wrongful death law, Oklahoma law very specifically lays out what is needed before a jury can be asked to award punitive damages.
Because there are so many specific procedural aspects to wrongful death cases, an individual considering such a case should consult an attorney experienced in the particularities of the law.
Oklahoma Constitution Regarding Wrongful Death
The Oklahoma Constitution has specific language about wrongful death cases. Article 23, Section 7 of the Oklahoma Constitution states:
“The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, provided however, that the Legislature may provide an amount of compensation under the Workers’ Compensation Law for death resulting from injuries suffered in employment covered by such law, in which case the compensation so provided shall be exclusive, and the Legislature may enact statutory limits on the amount recoverable in civil actions or claims against the state or any of its political subdivisions.”
Oklahoma has long held that the value of an individual’s life can not be predetermined by the legislature, and that a legal right of action to pursue a wrongdoer for wrongful death is valid in Oklahoma courts. Although insurance companies would certainly like it, and even though there has been political discussion about changing this portion of the Oklahoma Constitution, the Oklahoma legislature has wisely not yet made any serious attempt to do so.
What Your Attorney Should Do
Wrongful death lawsuits are typically taken on a contingency fee basis, depending on what is the underlying legal action. Your attorney should be experienced in the legalities of not only the wrongful death laws, but also in the areas of law regarding the underlying wrongful deed which caused the death (e.g., car accident, trucking, motorcycle, medical negligence, emergency room errors, failure to diagnose, loss of chance, etc.). There is usually a period of time required to gather information before filing a wrongful death lawsuit, and your attorney should be diligent and leave no stone unturned.
Detailed records are often required. Your lawyer will need to rely on you to be involved in order to obtain all available records. The Personal Representative of a deceased’s estate has the primary legal authority to obtain records. This may require an official Personal Representative to be designated and recognized by the court for the deceased person’s estate. Your attorney should understand the laws regarding estates, wills, and probate, and be prepared to file and handle these special legal procedures before ever getting to the wrongful death portion of the matter.
Timing is also critical in that, for most causes of action which underlie a wrongful death case, there is a two year statute of limitations for filing the case. Because it can take quite some time to acquire all the records necessary for properly researching and filing a case, the sooner an attorney is consulted, the better.
Allison Legal, in Oklahoma City has extensive experience in handling wrongful death claims in both federal and state courts, including the expertise to investigate the parties and causes, and the competence to create and pursue the proper strategy and obtain the best and most fair results.