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Nothing in life comes without risks. Even the simple task of driving to work can result in catastrophic consequences. As part of a civilized society, all of us have an obligation to one another to look out for each other and exercise the utmost care in everything we do. When people fail to look out for others and somebody’s life is tragically lost as a consequence, they are obligated under the law to compensate the victim’s family.
Missouri, like most states, has created a hierarchy of surviving heirs that may pursue a wrongful death case on behalf of a victim. If the victim had a spouse, surviving children (legitimate or illegitimate), surviving father, or a surviving mother, even if adopted, each such surviving person has the right to represent the interests of the victim in court, and even if none of the surviving heirs chooses to pursue a wrongful death case, nobody else is permitted to.
In the event the victim has no such relatives, one of the victim’s siblings may represent the victim’s interest in a lawsuit. If the victim had no surviving spouse, children, parents, or siblings, the court may appoint a suitable person to represent the victim’s interest in litigation.
What happens if, for example, the victim had two surviving parents and multiple surviving children? While only one surviving family member need represent the victim’s interest in court, if a favorable settlement is reached or a jury awards the victim damages at trial, the court would determine how to divide up the money awarded to ensure that all family members entitled to compensation receive their “fair share.”
While this is one of the most common question that clients ask us, it is also the most difficult to answer. The short answer is, unfortunately, it depends. Some cases can be resolved relatively quickly based on the responsible party’s insurance policy limits. In other cases, the policy limits may be so high that it is difficult for both sides to agree on a fair settlement number. In such instances, the cases can oftentimes be litigated for years.
Under Missouri law, in wrongful death cases, there are a multitude of different damages that the victim’s family may be entitled to. Missouri’s wrongful death statute allows for the recovery of, among other things, 1) actual monetary losses suffered by reason of the death such as funeral expenses, medical expenses, etc., 2) the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training, and support of which those who brought suit may have been deprived as a result of the victim’s death, 3) the victim’s pain and suffering between the point of injury and death, and 4) monetary losses the victim would have suffered had he or she survived the injury.
The last category would include loss of income or the cost of caring for the victim, which would be established at trial by the testimony of qualified expert witnesses, oftentimes including an economist. If the victim was under the age of 18, there is a rebuttable presumption (i.e. it can be assumed by the jury, but we can argue otherwise) that the value of the victim’s annual economic loss suffered as a result of the death is calculated based on the annual income of the victim’s parents. If the victim had two living parents at the time of death, the assumed annual economic loss is the average of the two parents’ incomes.
If the victim was not employed full time, was at least fifty percent responsible for the care or one or more children or disabled persons, or the victim was over sixty-five years of age, there is a rebuttal presumption that the victim’s annual economic loss is equal to 110% of the state average wage. In 2015, that amount was set at $886.92 per week.
Under all of these calculations, the economic losses accrue up to the estimated life expectancy of the victim had the injury not occurred. To establish the victim’s estimated life expectancy, your attorney would elicit the testimony of a qualified economist, actuary, or statistician to testify as to life expectancies based upon many factors, including the victim’s general health at the time of injury, age, medical conditions, etc. While it may seem odd, damages for grief and bereavement as a result of the victim’s death are not recoverable under Missouri law.
At Hollingshead & Dudley, we pride ourselves in the work we do in the courtroom. Although you hear about many attorneys that have never tried a jury trial and settle every case, we are not that firm. To be candid, if you are looking for a firm that will quickly settle your case, we are probably not right for you. Our medical malpractice attorneys work tirelessly to investigate, litigate, and if necessary, try your case.
Although our firm’s success in medical malpractice cases can be attributed to many things, including hard work, knowledge, and courtroom savvy, part of our success can be attributed to the firm’s “team approach” to representing our clients. At Hollingshead & Dudley, we have dedicated teams that are knowledgeable in Missouri’s medical malpractice laws and work together to fight for your rights. At some firms, you may have a single attorney working on your case. If you are lucky, the attorney might have a paralegal to assist him or her. At our firm, your case will be directly managed by a named partner who is assisted by other named partners, associates, paralegals, and law clerks. Each person at the firm plays a pivotal role in the success of each client’s case. In the event your case goes to trial, you will benefit from our firm’s policy of having at least two named partners try the case, as well as our extensive support staff that is intimately involved in assisting our attorneys throughout the trial.
