If you lost a family member, and another person’s carelessness (negligence) or intentional conduct may have caused your loved one’s death, you may have the right to bring a specific type of lawsuit under Kansas law, called a wrongful death action. The statutes contain complex provisions relating to wrongful death lawsuits, and a wrongful death attorney can help you navigate the law.
Kansas statutes provide a cause of action for damages if the wrongful act or omission of a person causes the death of another person, and the decedent could have brought a personal injury action had death not occurred. In some situations, a wrongful death action may be filed for the death of an unborn child.
A lawsuit filed under this statute involves a claim for damages on account of the wrongful death. All aspects of a wrongful death legal action are governed by specific Kansas statutory provisions. Most states have wrongful death laws, but the governing provisions differ from state to state. A summary of the provisions in Kansas law follows.
The Kansas law states that a wrongful death action may be initiated by “any one of the heirs at law of the deceased who has sustained a loss by reason of the death.” Generally, heirs at law who have a claim for loss include a spouse or close blood relatives, such as children, parents, or siblings.
If one family member files a wrongful death claim, other eligible heirs may join as plaintiffs or intervene in the action. Regardless of whether or not an heir joins or intervenes, the action is for the exclusive benefit of all heirs who sustained a loss. Respective recoveries are allocated as provided in the law.
The amount of compensation (or damages) in a wrongful death lawsuit may include both pecuniary (economic) damages and nonpecuniary (noneconomic) damages. Punitive damages are not recoverable in a wrongful death action.
Pecuniary or economic damages include monetary costs or losses resulting from injury and death of the deceased person, such as medical and hospital expenses and funeral expenses, as well as lost future earnings and retirement benefits. Generally, economic damages can be calculated or specified in a precise dollar amount.
Nonpecuniary or noneconomic damages are not measurable like economic losses. The statute provides that nonpecuniary damages may be recovered for, but are not limited to, mental suffering and loss of: companionship or protection, marital attention or advice, care or attention from a child, or parental care and guidance.
The statute limits the amount of nonpecuniary damages in a wrongful death case to $250,000. However, if a jury determines the damages, the judge does not advise the jury of the limitation. If the jury awards a higher amount, the judge lowers the award after the jury renders its decision.
After court costs and reasonable plaintiffs’ attorney’s fees are deducted from the recovery, the judge holds a hearing to apportion the damages among the decedent’s heirs. All known heirs with an interest receive notice of the hearing.
The judge allocates the total recovery among the heirs in proportionate shares, based on the specific loss sustained by each one. All heirs who sustained a loss receive a share of the compensation, even if they did not join or intervene in the action.
By law, there is a limit on the amount of time that heirs have to file a wrongful death claim. The limit is called the statute of limitations.
However, if the statute of limitations on the decedent’s own personal injury claim expired at an earlier date, that earlier date is also the limitation on the wrongful death claim. In a medical malpractice case, a wrongful death claim cannot be filed in any event if the decedent survived for four years after occurrence of the alleged malpractice on which the claim is based.
On account of the statute of limitations — and for other reasons as well — you should not delay in contacting a wrongful death attorney if you think you have the basis for a wrongful death claim. Doing so may jeopardize your ability to recover on the claim. If a lawsuit is filed after the statute of limitations expires, the court dismisses the action.
Wrongful death claims and the laws that govern them are extremely complicated. You should never attempt to pursue a wrongful death case without talking to an experienced wrongful death lawyer. Equally importantly, you should never talk to an insurance adjuster representing a potentially responsible insurance company. The adjuster’s only interest is in getting you to settle for the lowest possible amount, or even undermining your claim so that you receive nothing at all.
Both asserting the wrongful death claim and the court process are complex and require a lawyer with wrongful death experience. Calculating potential compensation in a wrongful death action also is a complicated matter that requires proven and specialized skills.
From our offices in Topeka and Lawrence, our experienced wrongful death attorney team at Sloan Law Firm assist clients throughout Kansas. We invite you to contact us by calling (785) 357-6311 or using our online contact form.