The death of a loved one is a heartbreaking experience. That grief is compounded if the death was due to a preventable accident or someone else’s negligence.
For some grieving family members, it can be difficult to discuss a wrongful death claim. It’s impossible to put a cost on human life, of course. But the reality is, losing someone unexpectedly can have financial consequences.
A wrongful death settlement can provide financial security and hold negligent parties responsible for their actions. Many families also experience a sense of closure after a wrongful death lawsuit settles.
Losing a loved one under any type of circumstance is difficult to handle, but it’s even more difficult if your loved one’s death was caused by the negligence of another person. If you’ve lost a family member due to someone else’s negligence, you’re likely eligible to receive compensation through a wrongful death lawsuit. An experienced wrongful death lawyer can help you determine your legal options.
Wrongful Death: Frequently Asked Questions
The following information does not replace a consultation with a wrongful death attorney. However, it does answer some of the more common questions that people have about Charleston wrongful death cases.
What is a wrongful death claim?
A wrongful death claim is a type of civil case. It allows certain close family members to pursue compensation after the death of a loved one. A wrongful death lawsuit is separate from any criminal case proceedings that may arise after someone’s death.
South Carolina law defines wrongful death as one that is “caused by the wrongful act, neglect, or default of another.” The law states that in the case of wrongful death, the at-fault party is liable for the same damages that the deceased would have been eligible to claim through a personal injury lawsuit had he or she survived. A wrongful death claim is a civil lawsuit filed by a personal representative of the estate of the deceased.
What is the difference between a wrongful death action and a survival action?
A wrongful death claim is made on behalf of surviving family members and is based solely on the economic and general damages that they have suffered and will continue to suffer due to the death of their loved one. Wrongful death actions require that the plaintiffs prove that the defendant’s negligence caused the death of their loved one. Survival actions, on the other hand, allow the estate of a deceased individual to bring claims for the pain and suffering that he or she experienced due to the injuries that eventually led to death. Damages in a survival action include the cost of medical bills and compensation for conscious pain, suffering, or mental anguish that the deceased experienced prior to death.
What are the causes of a wrongful death?
Virtually any negligent act under any circumstance that can cause a personal injury to an individual can also cause a wrongful death if the injuries sustained are severe enough. Some of the most common causes of wrongful deaths include:
- Auto accidents;
- Truck accidents;
- Motorcycle accidents;
- Bicycle accidents;
- Pedestrian accidents;
- Slip-and-fall accidents;
- Medical malpractice;
- Defective medications or products; and
- Nursing home abuse or neglect.
Who can file a wrongful death claim?
In South Carolina, the executor or administrator of a decedent’s estate can file a wrongful death claim on behalf of the decedent’s family members. The executor or administrator may be listed in the deceased’s estate plan. If no estate plan exists, then the court may appoint an administrator.
South Carolina Code of Laws, Title 15, Chapter 51 covers wrongful death claims. According to § 15-51-20, certain close family members can pursue compensation. The family members that may be eligible for compensation through a wrongful death lawsuit.
The law states:
- If the deceased was married at the time of their death, their spouse may file a wrongful death lawsuit.
- Any children of the deceased may also be able to file a claim.
- If the deceased wasn’t married and didn’t have any children, their parents can pursue a wrongful death claim.
- If there is no living spouse, children, or parents, then a lawsuit can be pursued “for the benefit of the heirs of the person.”
If you have any questions about your eligibility to file a wrongful death lawsuit, you should speak with an attorney.
Is a survival action the same thing as a wrongful death lawsuit?
A survival action is a different type of legal claim than a wrongful death lawsuit.
South Carolina Survival Actions. A survival action may allow the deceased’s estate to pursue compensation for:
- Any medical costs associated with the individual’s fatal injuries.
- Pain and suffering that the deceased experienced before they passed away.
These are damages that the deceased individual could have pursued through a personal injury lawsuit, had they survived.
South Carolina Wrongful Death Lawsuits. A wrongful death lawsuit covers damages that surviving family members experience after the loss of their loved one.
Compensation may be possible for:
- Medical costs for the deceased’s fatal injuries.
- Reasonable funeral and burial expenses.
- Lost wages and benefits, which takes into consideration what the deceased would have earned throughout their lifetime.
- Guidance, care, and protection.
- Loss of companionship.
- Mental anguish due to the deceased’s death.
A wrongful death settlement provides a stable future for surviving family members.
What is considered a wrongful death?
Section 15-51-10 defines wrongful death as a death that occurs due to “the wrongful act, neglect or default of another.” “Another” can refer not just to an individual, but to a business or other entity, as well.
Some of the more common wrongful deaths that occur in Charleston include motor vehicle accidents, workers’ compensation, medical malpractice, and nursing home negligence.
Charleston Motor Vehicle Accident Wrongful Death Claims. Several major roadways pass through Charleston: I-26, I-526, and U.S. Highway 52.
A driver may be found responsible for another’s death if they:
- Operated a motor vehicle while intoxicated or under the influence of drugs.
- Drove over the posted speed limit or too fast for road and weather conditions.
- Texted or used an electronic device while driving.
- Didn’t obey traffic signals and signs.
Recent statistics released by the Insurance Institute for Highway Safety show that approximately 1,000 people lose their lives on South Carolina roads each year. A motor vehicle accident can involve not just passenger cars, but also motorcycles, semi-trucks, pedestrians, and bicyclists.
Charleston Workers’ Compensation Wrongful Death Lawsuits. Some industries, such as construction and commercial fishing, are inherently more dangerous than others.
However, fatal illnesses and injuries can occur in any work setting, including:
- Offices
- Retail stores
- Factories
- Schools
- Medical facilities
Some of the Charleston area’s major employers are the U.S. Military, the Medical University of South Carolina, The Boeing Company, public school districts, and Roper St. Francis Healthcare.
Charleston Medical Malpractice Wrongful Death Cases. Unfortunately, a healthcare facility may attempt to cover up your loved one’s fatal medical malpractice incident or hospital negligence. A wrongful death attorney can help you discover what really happened.
You may file a wrongful death claim if your loved one died from:
- A medication error, including anesthesia administration.
- An allergic reaction to a medicine.
- A preventable mistake that occurred during surgery or a diagnostic test.
- An ER doctor who failed to properly diagnose or provide necessary treatment.
Some of the hospitals in the Charleston area include MUSC Health-University Medical Center, Roper Hospital, and Bon Secours St. Francis Hospital.
Charleston Nursing Home Wrongful Death Lawsuits. When seniors can no longer live safely at home, families must trust a nursing home to provide around-the-clock care. Unfortunately, not every facility keeps its promise to provide a safe environment that is free from abuse and neglect.
A nursing home may try to brush off a senior’s fatal illness or injury as either inevitable or a natural part of aging. It may take the efforts of a wrongful death law firm to discover what really happened.
Families may be eligible to file a wrongful death lawsuit or a survival action if their loved one died from:
- A preventable infection, such as a stage 4 bedsore.
- A fall due to a lack of supervision or not enough staff.
- Medication errors, such as missed doses or the wrong medication.
The Charleston area is home to numerous skilled nursing and assisted living facilities, including Harmony at West Ashley, Riverside Health and Rehab, and Life Care Center of Charleston.
How long do I have to file a wrongful death lawsuit in South Carolina?
In many situations, the statute of limitations for a South Carolina wrongful death claim is three years from the date of the deceased individual’s death. However, if the death occurred at a state or county medical facility, then the statute of limitation is two years.
Each state sets a statute of limitations for wrongful death lawsuits. Other states may have a different time limit.
It’s important to consult with a wrongful death lawyer as soon as possible. If you try to file a lawsuit after the time limit has passed, the courts may dismiss your claim.
Who pays a wrongful death settlement?
In some cases, the negligent party’s insurance company pays a wrongful death settlement. That may be an auto insurance or medical malpractice insurance provider. In other cases, a business may be financially responsible. However, each case is different.
And if the negligent party doesn’t have insurance, it doesn’t mean that they can’t be held responsible. For example, an uninsured driver may still be held liable for any fatal injuries that they caused due to their negligent driving.
Is a wrongful death settlement considered taxable income?
The IRS does not impose taxes on wrongful death settlements. In addition, businesses that pay out wrongful death awards cannot deduct that amount as a business expense.
How long does a Charleston wrongful death lawsuit take?
A wrongful death lawsuit can take anywhere from several months to a few years to settle.
How long a case takes may depend on:
- If there is more than one negligent party.
- How much evidence needs to be collected to build a strong case.
- How difficult or time-consuming it is to obtain evidence.
- If there is a dispute over who caused the accident.
- Whether the lawsuit settles out of court or goes to trial.
What the insurance company initially offers you may only be a fraction of what you are entitled to. A wrongful death attorney’s primary focus is to pursue maximum compensation on your behalf. This can take some time.
What are damages in a wrongful death case?
A wrongful death settlement is meant to cover damages that surviving family members incur as a result of their loved one passing away. This includes economic damages and non-economic damages.
Economic damages have a set cost associated with them, such as medical bills. Noneconomic damages are the intangible consequences of wrongful death, such as loss of companionship.
A wrongful death settlement may cover:
- All medical care that the deceased received for their fatal injuries before they passed away.
- Reasonable funeral and burial expenses.
- Any pain and suffering the deceased experienced before they died.
- Estimated future income that the deceased would have earned in their lifetime.
- Costs associated with home maintenance or household tasks that the deceased was responsible for.
- Guidance for any minor children.
- Loss of companionship and affection.
There are many benefits to hiring an attorney to help you pursue a settlement.
Can I file a Charleston wrongful death lawsuit without an attorney?
No. You gain too many advantages when hiring an attorney.
- A wrongful death lawyer has access to resources that the general public does not. A law firm can partner with experts to recreate an accident scene. Lawyers can also work with economic experts to fairly determine certain monetary amounts, such as lost future income.
- An attorney can represent you in court if your case does go to trial. Many wrongful death lawsuits settle out of court. However, if you do end up in court, an attorney can help you navigate that process.
- A lawyer can help protect your best interests. When an insurance company tries to settle a wrongful death case right away, they usually aren’t doing it out of the goodness of their hearts. They’re a for-profit business that needs to protect its bottom line. An attorney can help you maximize your compensation.
How much does it cost to file a Charleston wrongful death claim?
Each law firm sets fees and payment schedules. Before you hire a Charleston wrongful death attorney, you should learn about their specific fee structure.
What should I look for in a Charleston wrongful death lawyer?
During your consultation with a Charleston wrongful death attorney, consider asking these questions:
- How many wrongful death lawsuits do you handle each year?
- What are the results of some of these cases?
- In your experience, how often do wrongful death lawsuits go to trial?
- What are your fees and payment schedule?
Many people want to know how much the average wrongful death settlement is worth. The truth is, there is no easy answer to this question.
How much is an average wrongful death settlement?
You should be leery of any statements about average settlement amounts. There is no such thing as an average wrongful death lawsuit. Each case is unique and available damages depend on the specific circumstances of the case.
Furthermore, cases that settle outside of court are generally not made public. For this reason, any attempts at calculating an average amount would be based on court trials only. Trials may not fairly represent how most wrongful death lawsuits resolve.
What if the deceased didn’t have a will?
You can file a wrongful death lawsuit whether or not the deceased had a will. A wrongful death lawsuit provides compensation to certain family members for damages that resulted from the deceased’s death. This is typically separate from how the deceased’s belongings and assets are distributed after their death.
A recent Gallup poll shows that slightly more than half of all adults in the U.S. do not have a will. The reality is that some people pass away due to a wrongful death without a will. An attorney can answer any questions you have about how a wrongful death settlement could impact the deceased’s estate.
What must I prove to ensure the success of my wrongful death claim?
The success of a wrongful death claim in South Carolina hinges on a plaintiff’s ability to prove all of the following:
- That the at-fault party owed the deceased a duty of care. This duty of care relates to the activity which led to the decedent’s death. For example, if a car accident caused the wrongful death, then the duty of care owed by the at-fault party would have been driving safely and in accordance with local traffic laws.
- The at-fault party breached his or her duty of care by acting recklessly or negligently.
- That breach resulted in the death of the deceased and resulted in damages to the surviving family members.
What is the statute of limitations to file a wrongful death claim?
Under South Carolina law, the executor or administrator of a decedent’s estate must file any wrongful death claim within three years from the date of the deceased individual’s death. If the death occurred at a state or county medical facility, then the wrongful death claim must be filed within two years after the date of death.
What types of damages will I recover?
You may seek to recover the following types of damages through a wrongful death claim:
- Funeral and burial expenses
- Medical bills and expenses relating to the decedent’s final injury
- Lost wages and benefits that the deceased would have received had he or she survived
- Property damages and other losses related to the death
- Loss of the deceased’s experience, knowledge, or judgment
- Loss of the deceased’s care, companionship, or protection
- Pain, suffering, and mental anguish suffered by the surviving family members
- Punitive damages designed to punish the at-fault party for particularly negligent behavior
What if the at-fault party wants to settle outside of court?
If the at-fault party wishes to settle your wrongful death claim outside of court, you and your experienced wrongful death attorney should carefully consider the settlement offer in relation to the damages that you’ve suffered prior to accepting. If you both determine that the settlement amount is fair, you may want to agree to the terms, avoid litigation, and move on with your life. However, the court will still need to review and approve the settlement at a court hearing.
Will I have to pay taxes on any settlement or award that I receive?
Damage amounts recovered through a wrongful death claim are not taxable by the IRS. Furthermore, if the settlement or award is paid out by a business, that business cannot deduct the amount as a business expense.
Do I need an attorney to file a wrongful death claim?
The laws pertaining to wrongful death are complicated and fraught with deadlines and strict procedural requirements. While you could attempt to file a wrongful death claim on your own, hiring an attorney who is well-versed in these laws is your best chance to maximize your compensation.
If I disagree with the outcome of a wrongful death claim, can I appeal the decision?
Yes. Both parties have a right to appeal the outcome of a wrongful death case.
What should I look for in a wrongful death attorney?
If you’re looking for an attorney to assist you in your wrongful death claim, you should ensure that the attorney has the following:
- The resources to successfully litigate your claim should settlement attempts fail, including staff to help in the gathering of evidence and the ability to retain experts to provide in-court testimony.
- A proven track record of success in wrongful death cases.
- The knowledge needed to persuade a court using the law and to provide you with the information that you need to understand the process.
South Carolina Wrongful Death Law
South Carolina law allows for the legal pursuit of damages incurred through wrongful death. However, only the administrator or executor of the deceased’s estate, on behalf of certain family members, may file a wrongful death claim. By law, the administrator or executor must file any wrongful death claim within three years from the date of the deceased person’s death. The family members who are eligible to receive compensation through a successful wrongful death suit include:
- The surviving spouse and children of the deceased individual.
- The deceased individual’s parents, if there is not a surviving spouse or children. The parents of a deceased child who died as the result of another party’s negligence are eligible to file a wrongful death claim, even if the child is an adult, provided that they never abandoned their legal responsibilities toward that child before the child reached the age of 18.
- The heirs at law of the deceased person, if there is no surviving spouse, children, or parents. An heir at law is a blood relative who is entitled under South Carolina’s probate law to inherit when someone dies without a will or other estate plans.
Compensation for the following types of damages may be sought through a wrongful death lawsuit:
- Funeral and burial expenses
- Medical bills relating to the accident incurred on behalf of the deceased before he or she died
- Lost wages and benefits
- Damage to property and other losses relating to the death
- Loss of the deceased person’s knowledge, experience, or judgment
- Loss of the deceased person’s care and companionship
- Pain, suffering, and mental anguish of family members due to the deceased person’s death
Virtually any type of negligent or reckless act that results in a person’s death can become the subject of a wrongful death lawsuit. Some common examples include:
- Auto, truck, or motorcycle accidents;
- Nursing home abuse or neglect;
- Medical malpractice; and
- Defective products.
Charleston Wrongful Death in the News
The following news stories provide two examples of Charleston wrongful death lawsuits:
- According to a report from Live5 News, a nursing home in North Charleston is facing a wrongful death lawsuit after residents and their family members filed over 43 complaints against the facility in the past five years. The lawsuit alleges that a woman was admitted to the nursing home in 2015, and about a year later, the staff at the facility discovered her on the floor of her room with a laceration on her eyebrow from an apparent fall. Soon after, the woman was hospitalized for severe malnutrition and dehydration. She died a couple of days later. A nurse from Louisiana will testify that, in her professional opinion, the records indicate that the facility failed to take measures to protect the woman from falling. Furthermore, this particular nursing facility has more complaints against it than any other nursing facility in Charleston, according to the report.
- Two industrial cleaning companies are facing wrongful death lawsuits on behalf of the estate of a man who died after being buried in salt at a paper mill in 2017, according to Live5 News. According to the lawsuit, the two companies had a contract to clean a boiler that aggregated a salt compound, known as salt cake, on the interior tubes and walls. The companies failed to remove all of the salt, and they also failed to notify the paper mill of this. Later, the deceased man and three of his coworkers were repairing equipment below the boiler when an avalanche of salt suddenly buried the deceased man and another man. Other mine employees were able to free the deceased individual’s coworker, but they could not save the deceased man, who died of mechanical asphyxiation from being buried beneath the toxic substance. In the past five years, the report noted, OSHA has inspected the paper mill four times and has issued seven violations. One of the violations, which occurred in 2017, involved an incident where one employee died and another was hospitalized for asphyxia. The paper mill was required to pay a $10,000 penalty for that violation. The mill incurred five violations in 2016, for which it had to pay $28,000.
Get Legal Help for a Charleston Wrongful Death Case
If you lost your spouse, parent, or child because of another party’s negligence or irresponsible actions, you may be eligible for a wrongful death claim. To learn more, contact a Charleston wrongful death attorney at the Hughey Law Firm today.
Let Us Put Our Experience to Work for You
Attorneys Nathan Hughey and Stuart Hudson of the Hughey Law Firm work with wrongful death cases throughout South Carolina that result from nursing home abuse, car accidents, construction site accidents, and other accidents that involve the negligence of another person. Additionally, attorney Nathan Hughey lectures about and teaches nursing home litigation and regulations. Due to this significant expertise, other law firms throughout the state often retain him to assist them in wrongful death and nursing home litigation.
Having previously defended insurance companies in wrongful death cases, Hughey Law Firm can answer your questions and provide full legal representation regarding wrongful death. These types of cases are complex and difficult to understand. Don’t take time away from grieving with your family members and honoring your deceased loved one to worry about procedural details of your wrongful death claim; let one of our experienced wrongful death lawyers handle all of the legal aspects while you focus on recovering from your loss. Call the Hughey Law Firm today at (843) 881-8644, or contact us online, to schedule your free consultation and to discuss the details of your claim with one of our wrongful death attorneys.
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