Attorney Jody McKnight addresses some of the most common questions people have about serious, personal injury, accidental death, wrongful death and your legal options relative to South Carolina laws.
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Wrongful Death (6)
When someone dies by the negligence, recklessness, or intentional act of another person or corporation, that person’s family has a right to file a lawsuit to recover monetarily for the person’s loss of life and other economic losses associated with the person’s death.
In all cases of death, a Personal Representative (PR) of the person’s estate is named through the Probate Court. The PR is responsible for settling all of the deceased person’s debts and settling all outstanding business matters etc…; but also, the PR has the exclusive right to file any legal action(s) necessary to recover monetary damages on behalf of the family and Estate of the deceased person.
The PR (sometimes called the “executor”) is often named in the decedent’s will; and if no will exists, the Court will appoint a PR who meets the criteria for being named. Even if the PR is named in a will, this person has to be formally approved by the Probate Court, and may serve with our without bond, depending on the nature and size of the Estate. Closest family members are considered first, and have “statutory priority” to serve, in the event there becomes a dispute over who has authority to serve as PR.
The beneficiaries of the Estate are people who have a right to a portion of the Estate, through specific provision in a will; or through statute, where the deceased person dies without a will. Sometimes the PR of the Estate is a beneficiary, other times, not. It depends on the situation. Estate PRs can agree to jointly serve as well.
The three kinds of potential claims brought for the death of a loved one are (1) claims brought on behalf of the Estate; (2) survivorship claims, which are for the benefit of the Estate, rather than the family of the deceased. If it is shown that a deceased person experienced conscious pain and suffering, a portion of the proceeds of any settlement should be apportioned to the survivorship claim for court approval. The percentage apportionment of these claim amounts can affect creditors’ rights and claims on the Estate. “Appropriate damages in survival actions include those for medical, surgical, hospital bills, conscious pain, suffering, and mental distress of the deceased.” Scott v. Porter, 530 S.E.2d 389, 340 S.C. 158 (Ct.App. 2000) (citation omitted); and finally, (3) Punitive Damages, to punish the wrongdoer in appropriate cases for intentional or grossly negligent actions or omissions.
A wrongful, unplanned, death in the family can be devastating to individuals and families. The McKnight Law Firm does everything in our power to make the family as comfortable as possible during this difficult time. We can recommend grief counselors if needed. We dispatch all investigators and experts to secure crucial evidence early on while evidence is fresh, while allowing the family to focus on what’s most important, family and the process of grieving the loss of a loved one.The Probate Court has jurisdiction to deal with the estate of the deceased person. The McKnight Law Firm will assist the family in having a Personal Representative (PR) of the Estate appointed; and will assist will all document filings such as Inventories and Appraisals of Asset documents.
We identify all possible parties. A wrongful death can occur in many settings: the workplace, while driving, on a business premise, during recreation, during medical procedures, etc… A proper investigation ensures that all potentially liable parties are identified and included in the claims process.
Because wrongful death claims involve the most significant loss possible, many such claims are resolved only after the filing of a lawsuit against the potentially liable parties. During the process of “discovery,” the McKnight Law Firm is able to use litigation tools of subpoenas, Requests for Production and Interrogators (written questions), and oral depositions (under oath statements before a court reporter), to learn more about the circumstances underlying an event that lead to a person’s untimely death. However, there are some cases that for various reasons, resolve without the filing of a lawsuit. All cases are different.
Often, it is clear that a wrongful death as occurred, as in a clear liability auto or trucking wreck. Other times, the issue of what parties are involved and why those parties are legally responsible for the death of a loved one are not so clear. An investigation must be conducted, to gather all appropriate evidence and expert analysis, prior to instituting a lawsuit; and in many cases, a lawsuit is needed to give the McKnight Law Firm the litigation tools needed to determine not only who is at fault, but why the event occurred.
So whether it be an automobile accident, trucking accident, boating accident, medical error, dangerous and defective product, dangerous premise, or other event leading to a loved one’s untimely death, the McKnight Law Firm stands ready to conduct a thorough investigation to assist your family with the decision on how to proceed from a legal standpoint.
Life is priceless. No amount of money is worth the loss of a person’s life. But in a civilized society, the only way to deal with the wrongful death of a loved one is to make a claim for monetary damages.
The amount of monetary damages appropriate to each claim differs, based on the facts and circumstances of each case. We first identify all “hard” economic losses such as related medical bills and other known monetary losses, such as past lost wages and property losses. We then employ vocational specialists and economists to project monetary losses from future lost employment. The economist calculates a present value figure that compensates for the future monetary losses, based on the person’s life expectancy. (See S.C. Code Ann. 19-1-150, Life Expectancy Table).
The South Carolina Court of Appeals stated in Scott v. Porter, 530 S.E.2d 389, 340 S.C. 158 (S.C.App. 2000):
“Damages recoverable in a wrongful death action include: “(1) Pecuniary loss, (2) mental shock and suffering, (3) wounded feelings, (4) grief and sorrow, (5) loss of companionship, and (6) deprivation of the use and comfort of the intestate’s society, the loss of his experience, knowledge, and judgment in managing the affairs of himself and of his beneficiaries….” F.P. Hubbard & R.L. Felix, The South Carolina Law of Torts 610 (2d ed.1997) (citing Mishoe v. Atlantic Coast Line R.R., 186 S.C. 402, 197 S.E. 97 (1938)).”
Damages are also apportioned to the “Survivorship” portion of a wrongful death claim, if the deceased person suffered conscious pain and suffering.
And finally, if the loss involved a malicious, intentional, or grossly negligent act, punitive damages to punish the wrongdoer, may also be available as an element of damages.
The monetary amounts available differ in every case. The McKnight Law Firm often conducts jury verdict research as part of the process in determining potential jury verdicts in order to help determine an appropriate settlement figure.
When my loved one dies as a result of someone’s negligence, can I get compensation for loss of earnings?
Future earnings loss is a significant part of a wrongful death lawsuit. The McKnight Law Firm is associated with vocational experts and economic experts who prepare detailed reports on a person’s future earning potential. An economist is employed to calculate how much money it would take presently to compensate a family for their deceased loved one’s future earnings.
Everyone has their own philosophy of justice. However, most people agree that the United States system of justice; and in particular, the jury system, is the most fair system on earth for resolving disputes. When your loved one dies as the result of another party’s negligence, naturally, civil justice is available to the loved ones of the deceased person, in the form of monetary compensation. Of course, no amount of money will bring a loved one back. Life is priceless; no market value can be placed on the value of companionship, the value of having a mother, father, child, sibling or grandparent alive and functioning as a member of the family.
Lawsuits also remind people to act more prudent and safe in all areas of life that involve potential risk, whether it be driving, operating machinery, driving a boat, or performing a medical procedure on a patient. Some areas of life are simply more dangerous and risky than others; and in those instances, we must all act as an ordinary person under those circumstances would act. This is also referred to as the “reasonable person” standard. What would a reasonable person do under a particular circumstance? What would a doctor or other professional do when faced with similar circumstances? What are the rules of the activity? What are the standards of operation?
We have a right to expect that others will act reasonably; and when they don’t and cause another person harm to person or property, or death….they owe compensation. Often, it takes a lawsuit to discover the value of the case through detailed litigation; and through that litigation, things are made more safe; and families are compensated for harms and losses. Filing a lawsuit when someone dies through the negligence of another is normal; and most of the time, expected.
Serious Injury (2)
Any injury is usually a “serious Injury” to the person feeling the pain at the time. But some injuries simply don’t rise to the level of being called a serious injury. Injuries such as small bruises, muscle strains and sprains etc.., usually will resolve in appearance and symptoms within a few to several weeks.
“Serious Injuries” are those injuries that cause a person’s life to be significantly altered for some period of time, due to the nature and duration of the injury and symptoms. Broken bones, ruptured spine discs, ongoing concussion symptoms etc…the list is almost endless. Some serious injuries never go away.
When the injury is serious enough, and it affects a person’s quality of daily life and range of life activities, it is often assigned a Permanent Impairment Rating, under the AMA Guides to the Evaluation of Permanent Impairment. The Impairment rating system assists health care professionals to place an objective numerical percentage rating on the extent of loss of a particular body part or system.
Medical Impairment, however, is not be confused with the concept of disability. For example, a 50 year old plumber with an 8th grade education will be much more disabled with a broken spine, than a highly educated person whose career may not depend on physical labor; same medical impairment, but different level of disability.
In sum, the concept of what is “serious” is in “the eye of the beholder” so to speak; but when something is serious, the McKnight Law Firm is ready to assist.
The South Carolina Workers Compensation Act (SCWCA) was enacted in 1935 as a compromise between workers and employers. Prior to 1935 in South Carolina, if a worker suffered an injury at work, the worker was required to prove the employer was in some way negligent.
To streamline the multitude of work injury claims and make the system fair both the industry and workers, the SCWCA, requires the employer or it’s workers compensation insurance company to pay for all medical bills associated with an injury that occurs “within the course and scope of employment.” In addition to medical bills being paid for related medical needs, if the worker is out of work for more than 14 consecutive days, the worker is entitled to Temporary Total Disability benefits of approximately 2/3 of the worker’s average weekly wage. Once the worker reaches maximum medical improvement, the point at which doctors feel that medically, there is nothing else to be done to improve the overall function of the injured body part(s), doctors “release” the patient and evaluate the patient under the AMA Guides to the Evaluation of Permanent Impairment.
The SCWCA requires the employer to pay the worker compensation for any permanent disability suffered due to the injury. That can range from a minor impairment/disability, to a horrific, permanent, life changing impairment/disability. Each case is different; and compensation levels differ, based on the particular worker’s average weekly wage.