The death of a human in the death of a human being as the result of a wrongful act of another person, either by negligence (driving a car over the speed limit) or by a deliberate act such as assault and/or is a wrongful death. The intention of the wrongdoer is not relevant to make a death a wrongful death. This is the basis for a lawsuit (wrongful death action) against the person or group responsible for the death, filed on behalf of the members of the family who have lost the company and support of the deceased.
There are oftentimes multiple statute of limitations that relate to wrongful death claims meaning there is a separate statute of limitations for the conscious pain and suffering that precedes the wrongful death and those statute of limitations are dependent on the type of claim, but may be as short as one year in a medical malpractice case or two years from the date of the injury in a negligence claim. The wrongful death statute of limitations, which is the loss of an heir's services, attention, protection, guidance and counsel a statutory claim in Ohio as well as the loss of prospective inheritance, is two years from the date of death. The statute of limitations means your claim must be brought within that time or your rights are forever lost.
It is often stated that the heirs and next of kin have a clinical level of depression until they can go through the grieving process according to nationwide experts on grieving.
It is often also stated that as long as the claim or case remains pending, the grieving process is delayed meaning the heir or next of kin cannot conclude the grieving process. That makes it absolutely essential for the lawyer to focus on getting the best result for his client as quickly as he (she) can.
In Ohio only the executor or administrator can bring a claim for wrongful death. An estate has to be open in the county in which the decedent resided and the Probate Court controls the acceptance or rejection of an offer, the attorney fees paid, expenses paid, and the distribution of the proceeds to the heirs and next of kin. The administrator or executrix brings the claim on behalf of all the heirs and next of kin even if those persons are persons he does not have a particularly good relationship with.
At our firm, Stewart and DeChant, our attorneys ensure that the administrator/executor communicate with all the heirs and next of kin throughout the claims process to ensure that all the potential heirs and next of kin have input into what their losses are and are cognizant of our output and the details and facts of the case or claim and its various strengths and weaknesses. This is a requirement by the administrator or executor and the failure to follow this requirement often results in resentment by heirs and next of kin that are excluded from the process and the result of that is potential court action to have the administrator or executrix removed which is avoided with good counseling and attorney representation keeping all the prospective heirs and next of kin informed and included in the process although it is only the administrator or executor who decides what claim or claims to bring and decides whether or not to present to the Probate Court for approval any settlement.
