Practice Areas – Wrongful Death

Wrongful Death

“Wrongful death” refers to the type of claim asserted in connection with someone’s loss of life resulting from the negligent acts and/or omissions of someone else (classic examples including someone dying due to injuries sustained in an auto accident or from medical malpractice.

There are two categories of compensation (legal term: “damages”) that can be recovered in a wrongful death action: economic damages and noneconomic damages. The term “economic damages” refers to “objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.”[1]

The term “noneconomic damages” is commonly associated with compensation for “pain and suffering.” The legal definition of the term reads: “Noneconomic damages means subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment.”[2] At present, the maximum amount of noneconomic damages that can be recovered in a wrongful death case is $500,000, however a proposed law[3] that would raise the cap to $1,500,000 was just approved by the State of Oregon House of Representative

“Statute of limitations” is a legal term that refers to the deadline by which a person must file suit to preserve a given claim. Analyzing this in the context of an Oregon wrongful death claim can sometimes be tricky. The presumptive statute of limitations period for a wrongful death claim is three years from the date on which the injury causing death is discovered or reasonably should have been discovered.[4] As you can see, the three year period does not begin running (is not triggered) until the date on which the person bringing the claim reasonably should have “discovered” the potential claim (the so­called “discovery rule”). This typically has application in medical malpractice cases where the negligent character of medical care may not be immediately appreciated by a layperson. Having said that, there are legal rules that apply that serve to cap the amount of time that delayed “discovery” can serve to delay the commencement of the running of the limitations period.

There can be more than one statute of limitations period that can apply to a given wrongful death claim. For example, in Oregon, the limitations period for a medical malpractice claim is two years (the “discovery rule” applies in those cases, as well) while, as previously mentioned the presumptive limitations period in Oregon wrongful death cases is three years. Oregon appellate court decisions confirm that in such a case the three year wrongful death limitations period controls.

Wrongful death claims being asserted against a municipal entity (a city, a county, the state, etc.) present a legal malpractice trap for the unwary. As with medical malpractice cases, the statute of limitations period for tort claims being asserted against a municipal entity is two years.[5] Significantly, in wrongful death cases, that two year limitations period controls; not the presumptive three year wrongful death period.

In a wrongful death case, the party/ies who can assert a claim for compensation are the victim’s surviving spouse, children and/or parents (and, occasionally others). A court case is filed in probate court. The court appoints a personal representative of the decedent and they then prosecute the wrongful death claim, which can be resolved via a settlement (subject to court approval) or by filing suit and obtaining a judgment. As to the funds received, the law[6] dictates how they are to be distributed.

Given the significance and complexity of the issues involved in an Oregon wrongful death claim, you’ll want to retain a firm with the experience required to competently and timely investigate the claim; preserve all available evidence: handle all of the insurance ­related aspects of the claim; try the case, if necessary; and obtain fair compensation for the loss. At Phillip C. Gilbert & Associates our attorneys have decades of experience doing just that.  Call 503-465-9600 today for a free consultation.

[1] ORS §31.710(2)(a).
[2] ORS §31.710(2)(b).
[3] House Bill 4136.
[4] ORS §30.020(1).
[5] ORS §30.275(9).
[6] ORS §30.030 ­ORS §30.050.