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What is the Difference Between Wrongful Death and Medical Malpractice?

Oct 18, 2021

A question often asked is if there is a difference between making a claim for wrongful death vs. medical malpractice.

In general, with wrongful death, as the name suggests, there is a fatality, whereas with medical malpractice, besides death, the victim may also suffer many other types of injuries, such as paralysis, loss of function of the extremities, loss of vision, inability to work, speak or eat, and much more.

A medical malpractice wrongful death attorney can help you navigate through the laws.

What is a Medical Malpractice Claim?

A medical malpractice claim usually occurs when a healthcare professional, such as a nurse or a doctor, provides care that is deemed to be below the accepted standard of care resulting in a negative effect on the patient. Other healthcare workers that may provide negligent care include dentists, therapists, pharmacists, midwives, and laboratory technicians.

Medical malpractice may not always result in the death of the patient. Medical malpractice can result from the following:

Wrong-site surgery. For example, the doctor may remove the wrong body part because of a failure to mark the diseased organ appropriately.
Unnecessary surgery. The patient may require unnecessary surgery to remove an object that may have been left behind in a previous procedure.
Unnecessary disfigurement. Performing a procedure that leaves a patient with unnecessary scars or disfigurement.
Damaging an organ unnecessarily. Leaving an instrument or medical equipment inside a patient’s body causes damage to the intestine or another internal organ and requires additional surgery.
Longer hospital stays than necessary. If a patient needs to remain in the hospital for a much longer time due to a procedure or a secondary illness that could have been avoided.
Wrong medication. Given an erroneous dose of a drug, wrong drug, or develop a negative reaction to a drug that should have been caught before given.
Unnecessary surgery complication. Complication or infection that leads to loss of a body part, such as eye, leg, arm, or an internal organ.
Unnecessary failure of diagnosis. Failure to diagnose or a delay of diagnosis (e.g., missing cancer despite obvious symptoms or failing to schedule an appropriate test).
Infant’s birth. Unnecessary injuries are caused during the birthing process.
Nursing home abuse.
Unnecessary delay of treatment.

Wrongful Death

On the other hand, a wrongful death claim usually arises when an individual is killed because of the negligent or careless actions of another or the failure to act. Some of the more common causes of wrongful death include:

Slip and fall accidents
Medical malpractice resulting in death
Motor vehicle accidents
Intentional shooting (homicide)
Assault
Accidents resulting in death due to recalled vehicle parts
Recalled foods
A mishap during surgery resulted in death
Defective product leading to death
Nursing home abuse leading to death

To claim wrongful death vs. medical malpractice, one also has to show that the survivors have sustained some type of financial damages, which may include:

Cost of care of the individual before he or she succumbed to death
Funeral and burial expenses
Loss of financial support for the spouse, children, or aging parents
If the deceased were the sole wage earner, the survivors may be unable to pay rent, mortgage, utilities, etc.

Proving Negligence

Even though a medical malpractice case may have occurred, it can be very difficult to prove in court. The reason is that medicine is not perfect and almost every treatment/ procedure does have risks and complications; therefore, the medical malpractice wrongful death attorney has to prove that the healthcare provider's actions were below the accepted standard of care.

For example, if a patient with a stroke arrives at the emergency room complaining of weakness, then a stat CT scan of the brain and treatment has to be initiated within four hours for a full recovery. This is the current standard of care all over the USA.

If the emergency room physician, however, fails to get a CT scan (for whatever reason) or if the treatment is delayed for six hours and the patient suffers permanent brain damage and dies, then the physician was negligent and his or her actions were below the accepted standard of care.

In almost every medical malpractice case, the medical malpractice wrongful death attorney will need to seek expert medical advice to determine where the actions of the doctor fell below the accepted standard of care. Consulting with medical experts can be very expensive. The defendant will also produce his/her own medical experts to defend his or her position, and, in the end, the jury will decide the case.

Outside of medical malpractice, investigating, and proving wrongful death from other causes, the plaintiff is also tasked with the same burden of proof as any other personal injury claim. The lawyer has to show that the defendant owed the victim a duty of care, that he or she failed in this duty, thus resulting directly or indirectly in the death of the victim.

For example, let’s say a father regularly goes to a coffee shop near his home for his morning coffee. One morning he arrives and slips on a wet floor, hits his head on the edge of the heavy countertop table, and collapses. He is taken to the hospital but dies from severe brain injury. The coffee shop employee who mopped the floor early that morning forgot to place a “wet floor” sign after finishing the task. Now that the father has died, the family can file a wrongful death lawsuit against the coffee shop for failure to place a wet floor sign that led to his untimely death.

Statute of Limitations

Wrongful death vs. medical malpractice statute of limitations: it is important to note that there is a statute of limitations on filing a wrongful death claim. This period is two years from the time of death; with medical malpractice, the statute of limitations is three years.

The reason for the longer timeframe for a medical malpractice lawsuit is that the medical file of the victim has to be carefully evaluated by medical experts and depositions are required if the case goes to trial, which can be very time-consuming.

Conclusion

If a member of your family has suddenly died at the hands of a healthcare provider or in hospital, the only way to determine if there is medical malpractice involved is to first seek a consultation with a medical malpractice wrongful death attorney. The lawyer will most likely request the medical chart of the patient from the healthcare provider and send the file to a medical expert to determine negligence and the cause of death.

If there is negligence, carelessness, or failure to act that caused the death, the lawyer will then file a case of wrongful death on your behalf. In Arizona, call the Law Offices of Richard A. Gullette at 1-602-230-2916 to speak to a knowledgeable representative who can help answer your questions.

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Suddenly losing a loved member of a family because of the negligent or careless actions of another person can be devastating. Further, it can also deprive the family of income if the deceased individual was the sole breadwinner. In some cases, one aid for the survivors is to file a wrongful death lawsuit. There are many lawyers in Arizona from whom to choose; what are the best characteristics to look for? Below are tips on a few things to note when searching to find the best wrongful death attorney. Empathy and Compassion: When a family has lost a loved one, grief is a common emotion. Therefore, you want to select a professional who understands your grief and is sensitive to your tragedy. A lawyer who understands what survivors go through or has even gone through the same experience himself/herself will be better able to fight for your case and your legal rights. 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