As a Cleveland, Ohio wrongful death lawyer, I have had far too many occasions to represent families who have lost a loved one due to the negligence of another, including from medical negligence, nursing home negligence, hospital negligence, car accidents, unsafe workplace conditions and other unsafe premises. The untimely death of a loved one, whether a child, spouse or grandparent, has a profound and lasting effect on family members that is unlike the typical grief associated with death from natural causes. In addition to the usual grief, family members who have lost a loved one due to the negligence or intentional acts of another also suffer profound guilt and a feeling of loss of control of their own lives. After all, if their loved one can be taken away from them senselessly and without warning, why can’t it happen to them?
Under Ohio law, wrongful death actions must be filed within two years of the date of death. This is called the statute of limitations. In order to file a wrongful death lawsuit, family members must first apply to establish an estate with their local probate court. The probate court will appoint a fiduciary, either based on the contents of a Will or by application of probate rules if there is no Will. The fiduciary has the right and duty to act on behalf of all beneficiaries of the Estate to retain an attorney to conduct an investigation into the circumstances of the deceased’s death. Both the fiduciary and the wrongful death attorney owe a duty to all beneficiaries to act in their best interest, including conducting an investigation in good faith and notifying primary beneficiaries of key developments such as the results of the investigation, filing of suit, settlement or trial of a lawsuit, and distribution of proceeds of any verdict or settlement.
Ohio’s Wrongful Death Statute sets forth categories of damages that can be recovered in a wrongful death action. These include the following:
- Loss of support from the reasonably expected earning capacity of the decedent;
- Loss of services of the decedent;
- Loss of the society of the decedent, including loss of companionship, consortium and care;
- Loss of perspective inheritance to the decedent’s heirs at law at the time of the decedent’s death; and
- The mental anguish incurred by the Estate’s beneficiaries, including parents, spouse, children and other next of kin.
When an individual is injured due to the negligence or intentional misconduct of another and that injury leads to death, Ohio law distinguishes between the harms and losses caused by the injury leading up to the date of death, and the harms and losses that arise as a result of the death. The harms and losses, called “damages” by lawyers, arising before the date of death are identified in the lawsuit as a “survival action.” The survival action may be subject to a different statute of limitations than the wrongful death damages. For example, the statute of limitations applicable to the survival action arising out of medical negligence or an intentional act is one year, while the statute of limitations applicable to motor vehicle negligence and premises negligence is two years.
The proper presentation of a wrongful death action requires a trial lawyer to get to know the decedent and surviving beneficiaries. We do this by reading obituaries, viewing photographs and watching memorial videos. We interview family members on multiple occasions to learn the family lore. To properly capture all of the damages associated with a wrongful death, it is important to really get to know a family and understand their loss.
As a Cleveland, Ohio wrongful death lawyer, I represent families throughout the State of Ohio in wrongful death actions. At present, I have appeared in 27 of Ohio’s 88 counties, including the counties in which all of Ohio’s major cities reside: Cleveland, Cincinnati, Columbus, Akron, Canton, Toledo, Dayton and Youngstown.
If you have lost a loved one as a result of negligence or intentional misconduct, feel free to call Mishkind Kulwicki Law Firm our advice and counsel. We are to help.