Do I Have a Wrongful Death Case?

Do I Have a Wrongful Death Case?

It’s not uncommon for loved ones to be left feeling that the actions or negligence of another person or people precipitated the death of a family member.

These people may work for a health institution, the decedent’s employer, a product manufacturer or official authority like the police force in New York state.

How do you know if you have a valid wrongful death claim? And if you have one, how do you go about filing it?

Even if wrongful death can be proven, there are time limits to filing a lawsuit and only certain representatives of the deceased person are permitted to make the claim.

This complex area of law varies from state to state and it helps to know what the local New York laws are in regard to wrongful death lawsuits.

What is wrongful death?

Wrongful death is when someone is killed due to the misconduct or negligence of another person, entity or company.

A common example is a claim is filed against a medical institution entrusted to care for the health of a loved one (medical malpractice).

However, other instances like car accidents, construction accidents, defective or dangerous products or police misconduct can lead to wrongful death claims.

Section 5-4.1 of the New York Estates, Powers, and Trusts Code considers the action by a personal representative for a wrongful act, neglect or default causing the death of a decedent.

In essence, three main elements need to be demonstrated to the court in order to sue successfully for wrongful death in New York:

  • Death was caused by the negligence or wrongful conduct of the defendant
  • One or more survivors have suffered a loss as the result of the death, and
  • Damages were suffered by the survivor(s) that the deceased person’s estate can recover

Who can file a wrongful death claim in New York? 

New York state is very specific about who can file a wrongful death claim.

Even if all of the criteria for wrongful death are met, a family member cannot sue for wrongful death in New York unless they are a “personal representative” of the deceased person’s estate.

This personal representative could be a child, parent or spouse (or other person appointed by the court during probate if there is no living spouse, child, or parent).

The claim does not require the approval of the administrator of the decedent’s will.

The approved person can seek damages on behalf of anyone who can prove that they have suffered damages due to the premature death of the family member, including the heirs and beneficiaries of the estate.

Should the wrongful death lawsuit be successful, the court will treat the personal representative as being responsible for holding the damages in trust for the beneficiaries of the award.

Note that if the personal representative of the deceased person is a child who is legally incapable of filing a claim, a guardian is expected to fulfill the role and file the wrongful death claim instead.

What damages can be claimed in New York? 

The wrongful death damages laws in New York are being reviewed and you should speak to a wrongful death attorney to understand the latest regulations.

The amount of the damages claim potentially awarded depends on the specific circumstances. 

However, typically damages can include:

  • The costs of the funeral and burial expenses
  • Health care expenses of the deceased person
  • Lost earnings and benefits that the decedent would have provided for the family
  • The cost of parenting, care, and education for surviving children
  • Conscious pain and suffering experienced by the deceased person

Note that, at the time of writing, emotional pain, suffering and mental anguish of relatives or loss of companionship are not compensated under a wrongful death ruling.

There are, however, efforts within the New York State Legislature to add these non-financial damages to future wrongful death litigation.

The existing statutes are well over a century old and many are advocating updating them to bring them into line with other states.

How do you file a claim?

Apart from having to be the personal representative of the deceased person, there are other requirements when filing a claim for wrongful death.

For instance, action must be commenced within two years after the person’s death. 

This statute of limitations applies in almost all circumstances. After two years have passed, you will never be able to file a wrongful death lawsuit for the losses suffered.

For most people, the burden of proof is high in these cases and it is impossible to consider filing a wrongful death claim without the guidance of a qualified lawyer who specializes in such cases.

As the plaintiff, you should document what you can about the circumstances of the death and then contact a lawyer.

You will work closely with your lawyer to build a case. The most challenging element is usually demonstrating that the defendant’s negligent act or failure to act resulted in your loved one’s death. 

For instance, you would need to show that the failure of medical staff at the hospital to administer the correct medicine in the right amounts at the right time resulted in the death of your loved one.

An experienced lawyer will be accustomed to assessing whether you have a valid claim and, if so, helping you prepare a strong case.


My attorney was meticulous, intelligent, and had an exceptional demeanor with the judge and jurors. When the Jury verdict was returned in our favor I hugged my lawyer and cried. It wasn’t just the money that was so satisfying, it was being in the Courtroom with the doctor and their lawyers when the Judge told them the jury found them responsible.

France P.

We were not only pleased with the monetary award, but to see these facilities held accountable, we finally had some closure. I would recommend Sinel & Olesen, PLLC, to any family with a case involving bedsores or medical issues against a nursing home or hospital.

Lisle B.

Elliot Sinel was our trial attorney and our whole family watched the jury trial unfold for two weeks. Watching our lawyer cross exam the defendant doctors and nurses and exposing their neglect in the care for our father gave us all a great sense of satisfaction. The jury awarded us a tremendous sum of money and we all felt vindicated…

Terrence H.

Sinel & Olesen, PLLC, never told me to settle, instead they brought the case to trial and combined, a jury gave us close to a million dollars. I was very impressed by the trial attorney and the medical expert surgeon that my lawyers brought to court to testify.

Suzanne F.

Before the case went to trial, Elliot Sinel convinced the insurance company for the nursing home to pay us a large award. My sisters and I always knew that the medical negligence caused my father to suffer. The settlement gave us a feeling that the facility finally acknowledged their wrongdoing…

Ana B.