South Carolina Wrongful Death Attorney
Losing a loved one is never easy, but when their death is caused by someone else’s negligence or recklessness, the pain and suffering can be even more extreme. In South Carolina, when someone dies as a result of the wrongful actions of another person or entity, their surviving loved ones may be able to file a wrongful death claim. This is where our experienced and talented wrongful death lawyers come in David W. Martin Law Group’s office is located in Fort Mill, South Carolina, and we are here to guide you through the legal process and support you in your wrongful death lawsuit.
What is a Wrongful Death Claim?
Wrongful death is defined by South Carolina law as the death of a person caused by the wrongful act, neglect, or default of another, and the death would not have ensued without that act, neglect, or default. In other words, these are the elements of a wrongful death claim:
- Wrongful act, neglect, or failure to act of another person;
- Causes the death of the victim;
- The death of the victim would not have occurred but for the wrongful act, neglect, or failure to act of the person towards the victim.
Common types of wrongful death claims include negligence-based incidents (ex. car accidents), medical malpractice (ex. nursing home neglect), and even intentional acts or crimes.
Wrongful death makes the injured party or their family entitled to damages. Working with our South Carolina wrongful death attorneys can help you determine if you have a solid wrongful death claim against the party who caused the death.
An Example of a South Carolina Wrongful Death Case – Burroughs v. Worsham.
It can be helpful to hear a real example of what wrongful death is to really understand the legal arguments you may be able to make in your own case. In Burroughs v. Worsham, Yolanda Burroughs brought suit as a personal representative of James Burroughs’ estate against Dr. John Worsham and Fairview Family Practice for medical malpractice. In her suit, she alleged wrongful death, for which a jury awarded $3.5 million, and the South Carolina Court of Appeals upheld that judgment.
Yolanda and James married in 1984 and had two children, they lived in Greenville, South Carolina. James was a patient of Dr. Worsham’s at the Fairview Family Practice who was seeking treatment for lower abdominal pain. Dr. Worsham prescribed ulcer medication and never followed up or provided further treatment. A few months later, James was back in the hospital, and Dr. Worsham prescribed another medication. About a year after James initially went to the doctor, Dr. Worsham prescribed yet another medication – iron supplements. A year and a half later, Dr. Worsham diagnosed James with cancer phobia as he was still experiencing abdominal pain and, at that point, believed he had some type of cancer. Finally, years later, James was diagnosed with colon cancer at a hospital in Chicago. By the time they caught it, the cancer had spread throughout his entire abdomen and was incurable. He died shortly after he was finally properly diagnosed.
The court identified several factors they considered when determining if the jury awarded proper compensation, including:
- Pecuniary loss;
- Mental shock and suffering;
- Wounded feelings;
- Grief and sorrow;
- Loss of companionship; and
- Deprivation of the use and comfort of the decedent’s experience, knowledge, and judgment in managing the family affairs.
The court ultimately determined that the jury awarded the proper amount of damages based on those factors in this case.
This case is a prime example of wrongful death based on medical malpractice. Here, the surviving spouse and children received the damages for James’ wrongful death. The doctors who failed to treat James had to pay accordingly.
What is the Difference Between a Homicide and a Wrongful Death Case?
A wrongful death case is primarily to help the surviving family members recover for the loss of their loved one. The legal standard in a civil case is a preponderance of the evidence. This means in a wrongful death suit, you would have to show that it is more likely than not that the wrongful death occurred.
A homicide, on the other hand, is not only for the family’s benefit like a wrongful death case is. A homicide charge is brought by the state against the defendant who allegedly committed the offense for the purpose of punishment. Finally, the standard of evidence in a criminal case is proving the defendant committed the offense beyond a reasonable doubt. This is a higher standard than a civil case due to the fact that the defendant’s personal liberty will be taken away if they are imprisoned.
If a wrongful death case also has a homicide charge involved, the two cases will be carried out completely separately with no bearing on each other.
Who Can Bring a Wrongful Death Lawsuit?
According to state law, the surviving spouse, children, parents, or any heirs of the person can bring a wrongful death lawsuit. The individual who actually files the lawsuit is the executor or administrator of the victim’s last will and testament.
In the event that the victim who dies from wrongful death is a child born outside of wedlock or a parent who had a child outside of wedlock, all parties are treated as if lawful wedlock occurred. In simpler terms, state law dictates that if a parent passes away and they have a child outside of wedlock, that child is treated as if it were born within a marriage. Similarly, if the person that passes away is the child who was born outside of wedlock, the parents of that child (even though they were never married) will both have the right under the law to sue for wrongful death.
Regardless of who brings the claim, it must be filed within the period of the statute of limitations. South Carolina requires wrongful death claims to be filed within three years of the person’s death.
What Damages Can I Recover from a Wrongful Death Lawsuit, and How Do I Collect Damages?
Any settlement of a wrongful death action must be approved by either a probate court, circuit court, or United States District Court. Only an appointed personal representative of the victim of the wrongful death has the legal authority to settle a wrongful death action. A personal representative is typically a trusted person such as a surviving spouse, parent, child, sibling, aunt or uncle, or grandparent. The amount of damages can include, but is not limited to, memorial expenses, lost financial support and benefits, medical bills and expenses related to the death, and pain and suffering experienced by the surviving family members.
The personal representative, or the personal representative’s counsel, must petition the court with the following information:
- Basic facts surrounding the death of the decedent (victim of the wrongful death);
- Pertinent facts surrounding the liability of the alleged wrongdoer;
- Amount of insurance available to pay for damages;
- Terms of the proposed settlement;
- Statutory beneficiaries of the wrongful death action; and
- Amount of their claims.
After the petition is filed, the court will schedule a hearing to make findings on the evidence in the petition and evaluate if the settlement is proper. After evaluating the information in the petition and at the hearing, the court either approves or disapproves of the proposed settlement. If the court disapproves of the settlement, then the parties have to renegotiate the amount of compensation. In some cases, the court will recommend a proper settlement amount based on their analysis of the case.
The amount recovered in a wrongful death lawsuit will be divided among surviving spouses, children, parents, and other heirs as if the victim died without a will. Dying without a will is called ‘intestate succession,’ and the state has a scheme for how that person’s assets are distributed. South Carolina law outlines the following inheritance plan if an individual passes without a will:
- Surviving spouse inherits the entire estate if there are no surviving heirs (i.e., children).
- Surviving spouses and surviving heirs/children will split the estate evenly.
- If there is no surviving spouse, the surviving children will split their shares equally.
- If there is no surviving spouse or children, the parents will split the estate evenly.
- If there is no surviving spouse, children, parents, grandparents, or any other blood relatives, then the state will assume the estate’s assets.
There is an exception here if a parent or parents try to collect damages for wrongful death but did not reasonably provide support for the victim during their lifetime under that parent’s care. Then that parent or parents cannot collect wrongful death damages.
How Can Our Lawyers Help?
We have been representing litigants in their wrongful death suits for years and can help guide you through this process to ensure your rights are protected. David W. Martin Law Group lawyers can help you determine whether you have a viable case, help calculate appropriate damages, negotiate with insurance companies on your behalf, and ultimately represent you at trial. Proving a wrongful death case in South Carolina can be a complicated process, so it is crucial to work with experienced wrongful death lawyers. If you want to pursue a wrongful death claim, call our South Carolina wrongful death attorneys today at 843-891-5310.
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While we do all we can to settle cases in your benefit, we are also fully prepared to take your battle to court and win.
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We know that every case is different, and we treat them all with the same respect and attention. You’ll never be a number in our system, we will get to know you and every detail of your situation to get you the best outcome possible.
David W. Martin grew up right in Fort Mill and created his firm to represent the people who needed him most in the community he loves.
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At David W. Martin Law Group, our team of attorneys have the experience to help you achieve the best possible result based upon your facts and circumstances in South Carolina.