Losing a loved one under any type of circumstance is difficult to handle, but it’s even more difficult if your loved one’s death was caused by the negligence of another person. If you’ve lost a family member due to someone else’s negligence, you’re likely eligible to receive compensation through a wrongful death lawsuit. An experienced wrongful death lawyer can help you determine your legal options.
Wrongful Death: Frequently Asked Questions
If you’re considering filing a wrongful death claim due to the loss of a loved one, below we provide answers to some of the questions that our clients most frequently ask us.
What is a wrongful death claim?
South Carolina law defines wrongful death as one that is “caused by the wrongful act, neglect, or default of another.” The law states that in the case of wrongful death, the at-fault party is liable for the same damages that the deceased would have been eligible to claim through a personal injury lawsuit had he or she survived. A wrongful death claim is a civil lawsuit filed by a personal representative of the estate of the deceased.
What is the difference between a wrongful death action and a survival action?
A wrongful death claim is made on behalf of surviving family members and is based solely on the economic and general damages that they have suffered and will continue to suffer due to the death of their loved one. Wrongful death actions require that the plaintiffs prove that the defendant’s negligence caused the death of their loved one. Survival actions, on the other hand, allow the estate of a deceased individual to bring claims for the pain and suffering that he or she experienced due to the injuries that eventually led to death. Damages in a survival action include the cost of medical bills and compensation for conscious pain, suffering, or mental anguish that the deceased experienced prior to death.
What are the causes of a wrongful death?
Virtually any negligent act under any circumstance that can cause a personal injury to an individual can also cause a wrongful death if the injuries sustained are severe enough. Some of the most common causes of wrongful deaths include:
- Auto accidents;
- Truck accidents;
- Motorcycle accidents;
- Bicycle accidents;
- Pedestrian accidents;
- Slip-and-fall accidents;
- Medical malpractice;
- Defective medications or products; and
- Nursing home abuse or neglect.
Who can file a wrongful death claim?
In South Carolina, the executor or administrator of a decedent’s estate can file a wrongful death claim on behalf of the decedent’s family members. The executor or administrator may be listed in the deceased’s estate plan. If no estate plan exists, then the court may appoint an administrator. The family members that may be eligible for compensation through a wrongful death lawsuit include:
- The decedent’s spouse
- The decedent’s children
- The decedent’s parents, if he or she had no spouse or children
- In the absence of a spouse, children, and parents, the claim should be filed on behalf of the deceased’s heirs, according to South Carolina probate law.
- If the decedent was a child, his or her parents may recover compensation—even if the child is an adult—provided that the parents did not abandon their legal responsibilities for the child before the child reached the age of 18.
What must I prove to ensure the success of my wrongful death claim?
The success of a wrongful death claim in South Carolina hinges on a plaintiff’s ability to prove all of the following:
- That the at-fault party owed the deceased a duty of care. This duty of care relates to the activity which led to the decedent’s death. For example, if a car accident caused the wrongful death, then the duty of care owed by the at-fault party would have been driving safely and in accordance with local traffic laws.
- The at-fault party breached his or her duty of care by acting recklessly or negligently.
- That breach resulted in the death of the deceased and resulted in damages to the surviving family members.
What is the statute of limitations to file a wrongful death claim?
Under South Carolina law, the executor or administrator of a decedent’s estate must file any wrongful death claim within three years from the date of the deceased individual’s death. If the death occurred at a state or county medical facility, then the wrongful death claim must be filed within two years after the date of death.
What types of damages will I recover?
You may seek to recover the following types of damages through a wrongful death claim:
- Funeral and burial expenses
- Medical bills and expenses relating to the decedent’s final injury
- Lost wages and benefits that the deceased would have received had he or she survived
- Property damages and other losses related to the death
- Loss of the deceased’s experience, knowledge, or judgment
- Loss of the deceased’s care, companionship, or protection
- Pain, suffering, and mental anguish suffered by the surviving family members
- Punitive damages designed to punish the at-fault party for particularly negligent behavior
What if the at-fault party wants to settle outside of court?
If the at-fault party wishes to settle your wrongful death claim outside of court, you and your experienced wrongful death attorney should carefully consider the settlement offer in relation to the damages that you’ve suffered prior to accepting. If you both determine that the settlement amount is fair, you may want to agree to the terms, avoid litigation, and move on with your life. However, the court will still need to review and approve the settlement at a court hearing.
Will I have to pay taxes on any settlement or award that I receive?
Damage amounts recovered through a wrongful death claim are not taxable by the IRS. Furthermore, if the settlement or award is paid out by a business, that business cannot deduct the amount as a business expense.
Do I need an attorney to file a wrongful death claim?
The laws pertaining to wrongful death are complicated and fraught with deadlines and strict procedural requirements. While you could attempt to file a wrongful death claim on your own, hiring an attorney who is well-versed in these laws is your best chance to maximize your compensation.
If I disagree with the outcome of a wrongful death claim, can I appeal the decision?
Yes. Both parties have a right to appeal the outcome of a wrongful death case.
What should I look for in a wrongful death attorney?
If you’re looking for an attorney to assist you in your wrongful death claim, you should ensure that the attorney has the following:
- The resources to successfully litigate your claim should settlement attempts fail, including staff to help in the gathering of evidence and the ability to retain experts to provide in-court testimony.
- A proven track record of success in wrongful death cases.
- The knowledge needed to persuade a court using the law and to provide you with the information that you need to understand the process.
South Carolina Wrongful Death Law
South Carolina law allows for the legal pursuit of damages incurred through wrongful death. However, only the administrator or executor of the deceased’s estate, on behalf of certain family members, may file a wrongful death claim. By law, the administrator or executor must file any wrongful death claim within three years from the date of the deceased person’s death. The family members who are eligible to receive compensation through a successful wrongful death suit include:
- The surviving spouse and children of the deceased individual.
- The deceased individual’s parents, if there is not a surviving spouse or children. The parents of a deceased child who died as the result of another party’s negligence are eligible to file a wrongful death claim, even if the child is an adult, provided that they never abandoned their legal responsibilities toward that child before the child reached the age of 18.
- The heirs at law of the deceased person, if there is no surviving spouse, children, or parents. An heir at law is a blood relative who is entitled under South Carolina’s probate law to inherit when someone dies without a will or other estate plans.
Compensation for the following types of damages may be sought through a wrongful death lawsuit:
- Funeral and burial expenses
- Medical bills relating to the accident incurred on behalf of the deceased before he or she died
- Lost wages and benefits
- Damage to property and other losses relating to the death
- Loss of the deceased person’s knowledge, experience, or judgment
- Loss of the deceased person’s care and companionship
- Pain, suffering, and mental anguish of family members due to the deceased person’s death
Virtually any type of negligent or reckless act that results in a person’s death can become the subject of a wrongful death lawsuit. Some common examples include:
- Auto, truck, or motorcycle accidents;
- Nursing home abuse or neglect;
- Medical malpractice; and
- Defective products.
Charleston Wrongful Death in the News
The following news stories provide two examples of Charleston wrongful death lawsuits:
- According to a report from Live5 News, a nursing home in North Charleston is facing a wrongful death lawsuit after residents and their family members filed over 43 complaints against the facility in the past five years. The lawsuit alleges that a woman was admitted to the nursing home in 2015, and about a year later, the staff at the facility discovered her on the floor of her room with a laceration on her eyebrow from an apparent fall. Soon after, the woman was hospitalized for severe malnutrition and dehydration. She died a couple of days later. A nurse from Louisiana will testify that, in her professional opinion, the records indicate that the facility failed to take measures to protect the woman from falling. Furthermore, this particular nursing facility has more complaints against it than any other nursing facility in Charleston, according to the report.
- Two industrial cleaning companies are facing wrongful death lawsuits on behalf of the estate of a man who died after being buried in salt at a paper mill in 2017, according to Live5 News. According to the lawsuit, the two companies had a contract to clean a boiler that aggregated a salt compound, known as salt cake, on the interior tubes and walls. The companies failed to remove all of the salt, and they also failed to notify the paper mill of this. Later, the deceased man and three of his coworkers were repairing equipment below the boiler when an avalanche of salt suddenly buried the deceased man and another man. Other mine employees were able to free the deceased individual’s coworker, but they could not save the deceased man, who died of mechanical asphyxiation from being buried beneath the toxic substance. In the past five years, the report noted, OSHA has inspected the paper mill four times and has issued seven violations. One of the violations, which occurred in 2017, involved an incident where one employee died and another was hospitalized for asphyxia. The paper mill was required to pay a $10,000 penalty for that violation. The mill incurred five violations in 2016, for which it had to pay $28,000.
Let Us Put Our Experience to Work for You
Attorneys Nathan Hughey and Stuart Hudson of the Hughey Law Firm work with wrongful death cases throughout South Carolina that result from nursing home abuse, car accidents, construction site accidents, and other accidents that involve the negligence of another person. Additionally, attorney Nathan Hughey lectures about and teaches nursing home litigation and regulations. Due to this significant expertise, other law firms throughout the state often retain him to assist them in wrongful death and nursing home litigation.
Having previously defended insurance companies in wrongful death cases, Hughey Law Firm can answer your questions and provide full legal representation regarding wrongful death. These types of cases are complex and difficult to understand. Don’t take time away from grieving with your family members and honoring your deceased loved one to worry about procedural details of your wrongful death claim; let one of our experienced wrongful death lawyers handle all of the legal aspects while you focus on recovering from your loss. Call the Hughey Law Firm today at (843) 881-8644, or contact us online, to schedule your free consultation and to discuss the details of your claim with one of our wrongful death attorneys.
“Thank you Hughey Law Firm! It was a pleasure to work with you on my case! From the beginning, every contact I had with your firm was professional, kind, helpful, and painless! I always felt kept in the loop, and important to you as a client. If you are looking for a personal injury attorney with integrity, I would highly recommend Hughey Law Firm!”
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