Wrongful death actions in Ohio are goverved by statute: RC 2125.01 and 2125.02. Here are the basics of these statutes.
Q. Who can bring a wrongful death action?
A. Only the “personal representative” of the decedent can bring a wrongful death action. If the decedent had a will, the will should identify an executor. If the decedent did not have a will, the probate court appoints an administrator. Wrongful death actions are brought for the benefit of the surviving spouse, children, and parents of the decedent, all of whom are presumed to have suffered damages by reason of the wrongful death. Other next of kin can also recover, but they do not have a presumption of damages enjoyed by the immediate family members. This essentially means that, if a next of kin wishes to recover in the case, s/he must testify at trial, whereas the immediate family members need not testify (since their damages are presumed).
Q. What damages are recoverable in a wrongful death case?
A. There are five categories of damages:
- Loss of Support (from the reasonably expected earning capacity of the decedent)
- Loss of Services of the decedent
- Loss of the Society of the decedent (companionship, consortium, care, etc.)
- Loss of Prospective Inheritance to the decedent’s heirs
- Mental Anguish
Items 1, 2, and 4 are considered economic losses (usually require the testimony of an economic expert); items 3 and 5 are considered non-economic losses (do not require expert testimony).
Q. What about the decedent’s conscious pain and suffering before s/he died?
A. These damages are also recoverable, and are called “survivorship” damages. The wrongful death statutes pertain only to wrongful death damages. However, if the decedent had any conscious pain and suffering before s/he died, the complaint must include a claim for “survivorship” losses.
Comments
Whether the death is caused by a motor vehicle accident, medical malpractice, or any other cause, these principles apply. Wrongful death cases have a two year statute of limitations (even if caused by medical malpractice, which normally carries a one year statute). Also, the amount a jury can award in a wrongful death case is not capped by statute; the Ohio Constitution prohibits caps in wrongful death cases.
Jeff Beausay
