Grieving the loss of a loved one is always painful, but if you’re plagued by questions about how the death happened or who was at fault, it can be even more difficult. Many people wonder if another party was to blame for a family member’s untimely passing.
Some seek criminal charges, only to learn there isn’t enough evidence for a criminal case. Others simply want to feel some sense of consequences for the responsible party.
How Can a New Mexico Wrongful Death Attorney Help?
If you have questions or concerns about a loved one’s death, please contact Olson Personal Injury Lawyers for a free consultation. We know how hard it is to grapple with uncertainty about a family member’s death, and we’ll do our best to help you find answers.
At the same time, we know that an unexpected death can leave a family in financial turmoil. If we discover that another party’s negligence caused your loved one’s death, we’ll review the options for pursuing compensation so you can focus on your family in this difficult time.
What Is a Wrongful Death?
New Mexico law views a wrongful death as one caused by a “wrongful act, negligence, or default of another.” Another way to look at it is that if the victim had lived, they could file a personal injury lawsuit.
Although wrongful death cases can involve intentional acts, most are cases of accidental death. Often, these are caused by motor vehicle accidents, although an accidental death can occur in almost any situation.
Other cases might involve medical malpractice, construction site or workplace accidents, defective products, or premises liability. We’ll discuss these categories in more detail later in the article.
How Do You Know if Another Party Is Negligent in a Death?
Your lawyer will help you learn more about what happened and will look for the four factors that help to establish negligence:
- The other party (an individual or an entity like a business) had a duty of care. This refers to the general expectation that we all avoid actions that might increase the risk of harm to others.
- The other party failed in their duty of care. In other words, they took actions that were likely to cause injury or harm. This might mean driving recklessly, failing to secure a construction site so passersby won’t be hurt, allowing a vicious dog to roam freely, etc.
- This failed duty of care caused the death. We must connect the negligent actions with the decedent’s cause of death. Often, the negligent party’s attorney will make various arguments suggesting the death was either someone else’s fault or a tragic accident beyond anyone’s control. An experienced personal injury attorney will develop a strong strategy to refute this assertion and demonstrate exactly how the responsible party’s actions led to the death.
- You have damages due to the death. In a wrongful death case, damages may include final medical bills, funeral or burial costs, loss of income or financial support, loss of consortium or companionship, emotional distress due to losing a spouse, parent, or child, and, when applicable, the decedent’s pain and suffering before their passing.
Can Anyone File a Wrongful Death Lawsuit in New Mexico?
New Mexico requires the personal representative (similar to an executor) of the decedent’s estate to file the wrongful death claim. If you aren’t sure who the personal representative is, your attorney can help you learn more.
Usually, the personal representative is named in the deceased’s last will and testament. If they died without a will, the probate court will appoint someone, typically a relative.
You may be able to petition the court to make you the personal representative if one hasn’t been chosen yet.
Who Receives Damages From a Wrongful Death Lawsuit?
The personal representative must file the lawsuit, but the damages go to the estate’s heirs in this order:
- When the decedent has a surviving spouse and no children, the spouse receives all damages.
- When there is a surviving spouse and at least one child or grandchild, damages are split between the spouse and children.
- If the deceased had children or grandchildren but no spouse, the damages would be divided among the descendants.
- When there is no surviving spouse or children, or the decedent was a minor, the damages are awarded to the deceased person’s parents. If their parents have also passed, siblings may receive the damages.
How Long Does a Wrongful Death Case Take to Complete?
Because the case involves a death, the claim’s overall worth is usually six figures or more. As a result, the insurance company will likely put considerable effort into fighting the claim.
This causes wrongful death cases to take anywhere from 1-3 years to settle, depending on the specifics. Here are some other factors that can affect how long your case will take:
Disputes About Fault
If the other party’s fault is clear, and there is little to no evidence the decedent contributed to the accident, a wrongful death case may move more quickly. The insurance company will probably argue about specific damages or amounts, but the overall process will be faster if we don’t have to spend much time proving fault.
On the other hand, if there is more ambiguity about the facts of the case, we may spend months working to prove the other party’s fault, causing the case to take longer.
The Other Party’s Willingness to Settle
If there is significant evidence against their client, insurance companies usually prefer to settle a case rather than go to court. Juries can be unpredictable and may award large sums in certain situations, so if there is a substantial chance of losing, the insurance company will often work toward a fair settlement rather than risk a larger judgment in court.
In fact, most wrongful death cases are settled out of court for this reason. However, in some cases, the insurance company or the responsible party may refuse to settle and take the case to court, prolonging the process.
What if You Believe the Responsible Party Should Face Criminal Charges?
This is a common situation in wrongful death cases. Many times, we meet bereaved people who are understandably upset that the person responsible for their loved one’s death isn’t facing criminal charges.
Usually, the responsible party hasn’t been charged with a crime due to a lack of evidence. Either the police didn’t believe there was enough evidence to make an arrest, or the District Attorney declined to press charges because they didn’t think there was enough evidence to win the case.
District Attorneys’ offices typically have thousands of cases referred to them each year and limited time and resources. As a result, they have to focus their efforts on the cases they believe they can win.
We know how frustrating it is to hear that there is no way to address the responsible party’s actions in the criminal court. In some cases, we can still help you with a civil case.
This is because the criminal court system has a higher burden of proof than the civil court system. A defendant in criminal court must be found guilty “beyond a reasonable doubt,” while in civil court, it is only necessary to show that your case is stronger by a “preponderance of evidence.”
For some people, recovering damages from the responsible party provides a feeling of justice, even if they would prefer a criminal conviction. However, this is not the only reason to pursue a wrongful death claim.
How Can a New Mexico Wrongful Death Attorney Help if a Loved One’s Death Caused a Difficult Financial Situation?
This is the other major reason that people pursue wrongful death claims. Sometimes, a grieving spouse is harassed by bill collectors or realizes they can’t continue to support their family on their own.
Even a life insurance policy may not cover much beyond the funeral and final medical bills. Instead of spending more time with their children (who are also grieving the loss of a parent), the surviving spouse may be forced to look for a job (or a second job) or sell the family home.
You shouldn’t have to juggle grieving and trying to stabilize your finances. If another party’s negligence caused your loved one’s death, a personal injury lawyer may be able to recover the damages we discussed earlier.
Here are some more details about the types of damages involved in a wrongful death case:
- Funeral or burial expenses. The average cost of a funeral in New Mexico is over $6,000, and a cremation is still over $5,000. Saying goodbye to a loved one is difficult enough without worrying about the various bills involved in the funeral.
- Medical bills related to the death. Unfortunately, some grieving families also receive unexpected medical bills following the funeral. Often, the hospital made every effort to save the decedent’s life, including care in an ICU. Even with health insurance, this type of care can be costly, and the family may be responsible for a significant copay or deductible. Worse, the health insurance company could refuse to pay some charges entirely.
- Lost income. If you and your family relied on the decedent’s income, fully or partially, you can seek damages for loss of financial support. We’ll carefully consider how much your loved one might have contributed to the family if they had lived so you can have the resources you need to move forward.
- Emotional distress. This allows you to seek compensation for your own emotional pain after losing a loved one’s care, guidance, counseling, and companionship.
- The deceased party’s pain and suffering. If the decedent lived for some period of time after the incident that caused their death and was aware enough to experience discomfort, you can also seek damages for their pain and suffering.
What Are the Different Kinds of Wrongful Death Cases?
There are countless ways a wrongful death can happen, but here are some of the major categories that most cases fall into:
Motor Vehicle Accidents
Car accidents are the third most common cause of preventable injury deaths in the US. This category includes incidents involving large trucks, buses, multi-vehicle accidents, and bicyclists or pedestrians struck by a car.
While car collisions can be caused by weather or circumstances beyond anyone’s control, most are the result of driving errors. One or both drivers can contribute to a serious accident, and if the decedent was driving at the time of the crash, the other driver’s insurance company will likely attempt to blame them.
Your attorney will immediately investigate the accident and seek to find as much evidence as possible. We’ll look at photos from the scene, witness statements, video (if available from sources like doorbell cameras or security cameras), black box data from both vehicles, and more.
If there is ample evidence that the other driver was entirely responsible, we’ll fight to get the full settlement you deserve. However, if the decedent also contributed to the collision, we may still be able to recover some of the damages.
New Mexico uses pure comparative negligence statutes for personal injury cases, so each party to an accident or injury is only responsible for their share of the damages. This means if the deceased was 20 percent at fault in an accident, we can still recover 80 percent of the damages for their family.
Falls
Falls cause even more preventable injury deaths than car accidents, especially in adults ages 65 to 74. When a fall is fatal, it’s most commonly due to a head injury. Surprisingly, a fall doesn’t have to involve great heights to cause serious injury or death—in fact, most fall injuries and fatalities occur in falls at the same level.
When is a fall due to someone else’s negligence? This can be difficult to determine, and if you have concerns, it’s best to discuss them with a lawyer.
However, here are some examples of situations in which another party might be at fault for a fatal fall:
- Your loved one was a patient in a hospital or nursing home when the fall occurred. This should be considered a “red flag,” whether the fall is fatal or not. Medical facilities have strict protocols they need to follow so patients are safe. This involves keeping the floors clean and removing any slipping or tripping hazards, as well as taking extra precautions with patients who are a “fall risk.” If the facility failed to address a hazard or did not use proper care with a patient deemed a fall risk, they could be negligent.
- The decedent fell while on another party’s property. Your lawyer will investigate to determine the exact cause of the fall. If the fall happened due to a hazard the owner knew or should have known about, the owner could be at fault. For instance, if the deceased was climbing a staircase and leaned on the railing for support, but the railing came loose and caused them to fall, the owner might be negligent for failing to maintain and repair the loose railing.
- The fall took place on or near a construction site or on the job. Falling is a common workplace accident, and unfortunately, some of these falls can be fatal. If your loved one was working when they fell, you may be eligible for death or survivor benefits from Worker’s Compensation. (This is also true of any fatal workplace injury, not just falls.) However, you don’t have to work on a construction site to be injured by one. In some cases, a person walking by or near a site could suffer a fall due to debris or damage to the sidewalk that wasn’t properly blocked off.
Medical Malpractice or Medical Facility Abuse
It can be devastating to lose a loved one to an illness or injury, especially if you expect them to recover. Unfortunately, sometimes medical complications arise, and they can be life-threatening.
But many people find themselves wondering if their family member’s doctor made a mistake that led to the death. How do you know if your loved one suffered medical malpractice, causing their death?
Serious complications can occur even with the best medical care, yet many people still have concerns. If you question a physician’s role in a loved one’s passing, we hope you’ll talk to a lawyer to gain clarity.
Here are some signs that you may want to take a closer look at the events surrounding your relative’s death:
- They had a relatively minor illness with a good prognosis but quickly worsened despite following the doctor’s instructions.
- Your relative’s doctor gives you only a vague explanation or dodges your questions.
- Your loved one struggled with symptoms for a prolonged period, and despite multiple visits to their doctor, they weren’t diagnosed until their illness was very advanced.
- The death was caused by a foreign object left inside the patient after surgery or another confirmed surgical error.
- Your loved one was given a medication or treatment that was contraindicated because of allergies or other medical conditions despite mentioning these issues to the doctor.
- There is evidence that your family member was abused or neglected in a nursing home, hospital, or long-term care facility. This could include bruises, bedsores, broken or missing mobility aids, fearful behavior before they passed, cuts, broken bones, weight loss or other signs of malnutrition, and more.
- You have reason to believe the wrong medication was prescribed or administered. This might be the error of a doctor, nurse, or other healthcare worker.
- The facility where your loved one passed appeared to be understaffed. Medical mistakes are more likely to happen in understaffed facilities.
Most of the above signs don’t definitively prove that malpractice occurred, and sometimes, there are reasonable explanations that don’t involve a doctor’s mistake. However, if you notice any of these indicators, it’s worth discussing the matter with a New Mexico personal injury attorney to learn more.
Defective Products
Sometimes, we review a case and find the death was caused by a defective product. This isn’t always obvious to the decedent’s loved ones or even the authorities who initially investigate the case.
For instance, a car accident that appears to be the fault of a reckless driver might be caused by a defective car component, or a medical malpractice case could be a defective drug case.
New Mexico has strict liability for product manufacturers, which means it isn’t necessary to prove the manufacturer was negligent. However, we will need to show that the product was unreasonably dangerous when it left the manufacturer, and this dangerous condition caused the death.
How Can You Get Help From a New Mexico Wrongful Death Law Firm?
When seeking legal representation for a wrongful death case, it’s crucial to inquire about the attorney or firm’s specific experience handling such matters. Understanding their track record and successes can provide insight into their competence and expertise in this specialized area of civil law.
A responsive and communicative attorney who keeps you updated on your case is essential. At Olson Personal Injury Lawyers, we prioritize your concerns and ensure transparent communication throughout the legal process.
While wrongful death claims may involve prolonged proceedings, we remain dedicated to keeping you informed every step of the way, providing updates on progress and future actions.
If you have questions or concerns about a loved one’s passing or believe another party is at fault, please contact Olson Personal Injury Lawyers for a complimentary consultation. During this session, we’ll examine the specifics of the situation, address any uncertainties you may have, and discuss the available legal avenues for pursuing a civil claim.
About Attorney Sean Olson
Attorney Sean Olson, the driving force behind Olson Personal Injury Lawyers, moved from a career in journalism to legal advocacy, graduating with distinction from the University of Denver’s Sturm College of Law. Committed to championing the narratives of injured people and their families, Mr. Olson channels his passion for storytelling into representing his clients’ interests.
When he’s not fighting for his clients, he likes mountain biking, fly fishing, and enjoying quality time with his family. Work with him today when you call Olson Personal Injury Lawyers at (505) 391-4149.