Just hours after routine tonsillectomies and adenoidectomies, Anthony "A.J." Legge and his twin brother, Joshua, stopped breathing. The Columbus Dispatch reports that the boys -- having been discharged from the hospital with notes in their file saying that everything had gone fine -- both died of cerebral edema. They were three years old.
The Marysville otolaryngologist who performed the procedures admitted that he had been told about the mother's concerns over her sons' pre-existing breathing problems but did not believe them to be dangerous.
Parents Jenny and Shannon Legge initiated wrongful death litigation against the doctor, maintaining that if he had kept the twins in the hospital overnight their post-surgical complications could have been detected. Reportedly, doing so would have been within the doctor's power and a standard practice for children under three and for those with a history of breathing trouble.
WHAT IS A WRONGFUL DEATH?
Ohio law provides that when death is caused by any of the following, it gives rise to a legal claim for damages in wrongful death litigation:
- A wrongful act
- Default, or a failure to do something that would have otherwise been a cause of action to recover damages had death not resulted
The personal representative of the person who has died, called the decedent, must bring the lawsuit for the exclusive benefit of the surviving spouse, children, parents and other next of kin of the decedent.
There are many events that may give rise to a wrongful death claim, including death that resulted from:
- A drunk-driving accident or other car crash
- Medical malpractice: The plaintiff must show both that the doctors or nurses committed malpractice and that the malpractice proximately caused the wrongful death
- Nursing home negligence
Defective products or equipment
When a person is first injured by the wrongful, or tortious, conduct of another person and later dies from that injury, two claims exist. For example, if a person suffers injuries as a result of being struck by a drunk driver and thereafter dies from those injuries, there is a claim for personal injury (which can be brought by the victim or on his or her behalf by a representative) and also the wrongful death claim. If a patient dies as a result of injuries sustained from anesthetist error, there are claims for both medical malpractice and wrongful death.
There are limitations on when a wrongful death suit may be brought. Generally, lawsuits must be brought within two years after the decedent's death and also within ten years after a product was delivered to the first purchaser or lessee. That is, if a defective product causes the wrongful death, the product must have been purchased from the manufacturer or supplier within the last ten years, even if the decedent bought the product from someone other than the manufacturer or original supplier.
Some events may affect the limitations, including incidence of fraud. Also, the manufacturer or supplier may provide an express, written warranty that extends the time for bringing a suit.
Plaintiffs in wrongful death suits may seek an award of punitive damages if there was actual malice. Actual malice is characterized by hatred, ill will, a spirit of revenge or a conscious disregard for the rights and safety of other persons that has a great probability of causing substantial harm. This standard is more onerous than proving mere negligence.
Even short of actual malice, depending on for whose benefit the lawsuit is brought, wrongful death may give rise to claims for:
- Compensation for loss of support from the reasonably expected earning capacity of the decedent
- Loss of services of the decedent
- Loss of prospective inheritance
- Mental anguish
- Loss of the society of decedent for some relatives
According to The Columbus Dispatch, a jury in the Union County Common Pleas Court recently found the doctor at fault in the death of the three-year-old Legge twins. Undoubtedly, the $2 million award will not erase the grief of the parents over the premature deaths of their boys.
Nonetheless, parents, children or siblings of those who have died due to the negligence or wrongful behavior of others should contact a wrongful death lawyer. An attorney can counsel clients regarding any right to compensation and pursue financial stability in this period of emotional turmoil.