Ohio's Wrongful Death Statute: The Basics

Wrongful death actions in Ohio are governed 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 suits benefit the surviving spouse, children and parents of the decedent, as they provide compensation for such damages as loss of companionship. 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 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 financial support

· Loss of services

· Loss of companionship

· Loss of potential inheritance

· Mental anguish

The first, second and fourth items are considered economic losses (usually requiring the testimony of an economic expert); the third and fifth are considered noneconomic losses and do not require expert testimony.

Q. What about the decedent's pain 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 needs to include "survivorship" losses.

Comments

Whether the death is due to 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.