When someone dies in West Virginia due to the negligence of someone else, it is possible for certain family members to seek compensation under the state’s wrongful death statute. It is important to understand that not everyone is eligible to file a wrongful death suit and that there are factors that must be considered before the suit is filed.

What Constitutes Wrongful Death?

In West Virginia, certain criteria must be met before a wrongful death suit can be filed. Of course, the first criteria is that someone must have died. In addition, the death must have been caused by neglect, wrongful act or default. The final criteria is that the person who died must have been able to sue whoever caused the death for damages if they had survived.

Civil Not Criminal

Wrongful death statutes in West Virginia are civil claims not criminal. This means that a wrongful death claim can be filed even if there is a criminal case in process. A wrongful death claim is filed by the estate of the person who died while a criminal case is filed by the state. Even if the person is not convicted of a crime, it is possible that the family could prevail in a civil lawsuit as the burden of proof is different in the two types of cases. For example, a pedestrian is killed while crossing the street. The driver is charged with driving under the influence. At the criminal trial, the case is dismissed due to a technicality, such as an improper field sobriety test. This does not preclude the family of the victim from filing a civil lawsuit against the driver for wrongful death. In addition, a wrongful death claim allows the family to recover losses and receive monetary damages. A criminal proceeding simply determines if the person responsible was criminally liable for the death.

Who Can File Wrongful Death Claims?

In West Virginia, a wrongful death suit must be filed by the deceased person’s personal representative. The family is not permitted to file the suit. Once the court has awarded damages, the personal representative is responsible for distributing the damages to a surviving spouse or children. If a sibling was dependent on the deceased person, they may also receive a portion of the damages. If the person has no spouse or children, it is possible that their parents may receive compensation. Stepchildren and adopted children may also qualify for compensation. If there are no surviving family members, any damages are distributed in accordance with the will of the deceased. If the deceased did not have a will, the proceeds are distributed based on West Virginia intestacy laws.

What Damages Can Be Recovered?

The family may recover any medical expenses incurred by the deceased person before they died, including ambulance or helicopter transportation, emergency room treatment and hospital stays. In addition, the family may receive compensation for the cost of the funeral. However, if wrongful death is proven, the family may also recover damages for sorrow and mental anguish as well as loss of companionship, loss of income and loss of protection. A court may also offer punitive damages if the death was caused by a particularly reckless, malicious or intentional act. If there was property damage as well, the family may receive compensation for any property lost or damaged. For example, in a drunk driving accident where the intoxicated driver was significantly over the legal limit, a jury may award medical and funeral expenses, pain and suffering, reimbursement for damage or loss of a vehicle as well as punitive damages.

Time Limits

In West Virginia, a personal representative has two years to file a wrongful death claim. In most cases, the two-year clock begins running on the date the person dies. This means that if an accident occurs in January and the person does not die until June, the two-year time limit begins in June. It is important to discuss the particulars of a wrongful death case with an attorney as soon as possible after the accident in order to avoid missing the deadline to file. If the case is filed after the deadline, which is known as the statute of limitations, the court may dismiss the case entirely.

Comparative Fault

Under West Virginia law, a wrongful death case falls under a modified comparative fault rule. If the person who died was 50 percent or more at fault in their death, no damages can be recovered. If there is less than 50 percent fault attributed to the deceased person, any damages are reduced by that percentage. For example, an employee falls from a ladder and dies of their injuries. Despite safety training, the employee failed to secure the ladder properly. The damages awarded in the case are $100,000, but it is determined that the employee was 60 percent responsible. In West Virginia, the estate of the deceased may not recover the damages. If there were no warnings or safety training, however, the employee may be found to be only 20 percent liable. The family of the deceased person would receive $80,000 in damages, representing a 20 percent deduction from the $100,000.

Medical Malpractice

The legislation in West Virginia regarding wrongful death caused by medical malpractice differ somewhat from other types of wrongful death. Medical expert witnesses must be used to establish and prove medical standard of care. The experts also must be engaged in the same or similar medical field as the healthcare professional who is being accused of malpractice. In addition, if there is more than one responsible defendant, each defendant is liable for the entire verdict, regardless of their percentage of fault. If the healthcare provider can prove that the deceased person was more than 50 percent at fault, the family cannot receive damages. For example, a patient is diagnosed with diabetes but refuses to change their diet, exercise or take medication. In this case, a healthcare provider could demonstrate that the deceased person was more than 50 percent responsible for their death.

How Much is a Wrongful Death Claim Worth?

It is difficult to determine how much a wrongful death claim is worth, especially because it is difficult to put a price on human life. Compensatory damages are intended to compensate the family for their losses and attempt to put an amount on the consequences of an accident. Some are easy to determine, like medical bills or property damage, but others are more difficult. For example, the family may be eligible for compensation for lost income. This is not just the current income the person was making, but income they would have made in the future had they not died. Emotional distress, such as fear, anxiety and depression, which often occur after the loss of a loved one, are also part of compensatory damages. Because a spouse no longer has the companionship of a spouse, they may qualify for loss of consortium compensation as well.

How Are Punitive Damages Calculated?

When someone’s actions are particularly egregious, a judge or jury may order punitive damages. These are damages designed to punish the person who caused the death. In some cases, punitive damages have been in the millions as the judge or jury found the actions of the plaintiff particularly heinous. However, West Virginia caps non-economic losses in medical malpractice cases at $500,000 for wrongful death. This includes compensation for pain and suffering, emotional distress and other losses that cannot be verified with a bill or statement.

When a loved one dies and it is believed that their death was due to neglect, misconduct or carelessness, it is critical to contact an attorney as soon as possible to determine if a wrongful death claim is warranted. It is also important to remember that medical malpractice may have different regulations than other types of wrongful death case. An attorney can provide advice and guidance on how to proceed as well as what rights you may have under the law.

To arrange a meeting to discuss your rights and options, contact our office online or call us at 800-766-9441.