Can You File a Lawsuit If Your Loved One Is Declared “Legally Dead”?

Can You File a Lawsuit If Your Loved One Is Declared “Legally Dead”?In Kentucky, the state can declare someone legally dead even if they are not technically deceased yet. According to the Kentucky Legislative Research Commission, a person will be declared legally dead if breathing is not artificially maintained and they are not able to breathe on their own, or if breathing is artificially maintained but there is no active brain function (KRS 446.400). So although a person can be kept physically alive through a ventilator in the hospital, there are some scenarios where the state of Kentucky will consider them to be deceased.

While it may seem a little confusing, this actually opens up a new door for a way to receive compensation for their “death” if it was caused by someone else. Even if a loved one is not physically dead but is considered to be legally dead, you can file a wrongful death lawsuit in the state of Kentucky.

But you may not want to. One of the more challenging aspects of a wrongful death claim is determining damages. Normally, the “fight” is over the less tangible losses – one’s pain and suffering before death, loss of power to labor, or funeral expenses. However, in a case where a person is legally dead but still “alive” on a respirator, it can be difficult to determine the true extent of medical expenses. Once an award is made, by a jury or through a settlement, that’s it: you cannot collect more.

All of this assumes that life-prolonging treatment has been stopped, of course. In cases where a guardian, spouse, or child (whomever is legally allowed to make the decision if there is no advanced directive) chooses to keep the person on support, or in cases where the patient is pregnant and the requirements to remove support have not been lifted, you may be unable to legally do anything until a decision is reached.

Can you sue on behalf of someone else for wrongful death in Kentucky?

Kentucky law defines a wrongful death as a person dying as a result of an injury caused by the negligence or wrongful act of another person. Wrongful deaths can be caused by incidents like a car accident, medical malpractice, or a crime that had intentional motives. If you believe that your loved one is legally dead because of someone else’s negligence, then filing a wrongful death lawsuit may be an option.

So someone else can sue on behalf of the deceased to recover damages? To put it simply, yes—but there are stipulations. A wrongful death claim is actually pretty similar to a personal injury claim, but since the injured person is not able to seek compensation themselves, someone else must step up.

What kind of damages can you seek in a wrongful death claim?

Damages in a wrongful death case are meant to compensate the deceased’s estate and the surviving immediate family members for their loss. You can make a claim for the following losses:

  • Lost income and earning potential
  • Pain and suffering
  • Lost household services and care
  • Funeral and burial expenses
  • Attorney and court fees
  • Medical expenses incurred by the deceased

If the deceased’s immediate family wants to sue for their own pain and suffering due to their loved one’s death, they may file a loss of consortium claim. This will be completely separate from the wrongful death claim, but it will give their family another opportunity to be awarded compensation.

What is “loss of consortium?”

Each state has a slightly different definition of consortium, but Kentucky specifies it as the “services, assistance, aid, society, companionship and conjugal relationship” that the deceased spouse would have provided if they were still alive. The deceased’s spouse can file this type of lawsuit against a third party to fight for compensation for their pain and suffering. Parents may also file loss of consortium actions if their minor child dies, and minor children may also claim damages for the loss of a parent.

How long do you have to file a wrongful death claim in Kentucky?

Generally, you must file a wrongful death case within one year from when the deceased’s personal representative is appointed, or within two years if it took over a year for the court to appoint a personal representative. If you are also pursuing a loss of consortium case, you must file that within one year from the date of death.

How long does a Kentucky wrongful death case take?

Lawsuits, especially complicated ones, tend to take a while to reach an outcome. A wrongful death suit can take up to several months or several years before it is resolved.

While this may seem enticing with all of the bills adding up, it is not always in your best interest. The large lump sum could look like a great deal of money, but the first offered amount is typically not enough to help cover the expenses you currently are and will be responsible for in the future. An experienced Kentucky wrongful death attorney can help you fight for even more compensation that will more comfortably help you with those expensive costs.

Losing a loved one is never easy, but we want to help you get through this as painlessly as possible. If you are ready to fight for a wrongful death of a loved one due to someone else’s negligence, our Kentucky attorneys want to help. Call the office of Wilt & Associates, PLLC, at 502-253-9110, or reach out through our contact form. We serve individuals and families in Louisville and Lexington, and throughout the state.