Unintentional injuries are regarded as the fifth leading cause of death in the U.S.A. These injuries include situations of medical malpractice, personal injury and birth injuries.
It is clear that the chances of wrongful death are tragically high. So what do you do if you lose someone you love to an act of gross negligence?
Your best course of action is filing a wrongful death lawsuit. However, keep in mind that there’s a finite amount of time for you to pursue action.
The wrongful death statute of limitation in California varies according to the circumstances surrounding the death. So let’s look into these variables, how they affect your case!
However, before we get too specific, let’s understand the concept of a statute of limitation and the reason its so important.
What is a Statute of Limitation?
A statute of limitation is a restriction set on pursuing legal action against someone for a particular offense. It lays down a time period or deadline within which the plaintiff has the opportunity and ability to sue the defendant. If no legal action is taken by this maximum deadline, none can be taken after.
Generally, a statute of limitation follows either one of two principles.
- Discovery rule: The statute of limitation commences at the time of the plaintiff’s discovery of the injury
- Rule of injury: The statute of limitation commences at the time of the injury
If action is taken after the deadline and the plaintiff presents a good enough defense, the court may waive the rule allow the proceedings to continue.
The Subjectivity of State Laws
Each state is governed by its own unique sets of limitations. When filing proceedings in a given jurisdiction it is always important to examine how much time you have until it expires.
Understanding Wrongful Death
Wrongful death refers to a death that arises out of someone else’s negligence, carelessness or failure to exercise due diligence. It is important to note that this is very different from murder.
For one, a wrongful death lawsuit is a civil proceeding, whereas the latter is a criminal proceeding. Another differentiating factor is the intent. Murder implies an intent to kill; wrongful death is an unfortunate consequence of someone’s negligence.
So, now that we’ve got that out of the way, let’s put the two together in the context of California.
The Wrongful Death Statute of Limitation in California
To understand the specifics of this rule, we turn to the California Code of Civil Procedure. This outlines the rules regarding general cases of personal injury that lead to wrongful death, medical malpractice and governmental negligence.
The General Rule: Section 335.1
According to this rule, a wrongful death lawsuit can be initiated within 2 years of the death of the person in question.
This implies a certain subjectivity based on circumstances. For example: If someone dies in a car crash, their family can sue for wrongful death within two years of their death. However, if the victim suffers severe injury, that subsequently results in his death two months post-treatment, then a lawsuit can be initiated two years from then.
So the key takeaway here is that the date of death matters more than the date of the actual accident.
However, in the case of a minor suing for the wrongful death of a parent or guardian, they might be entitled to two years from the day they turn 18.
Medical Malpractice: Section 340.5
Medical malpractice refers to a situation where doctors or medical practitioners do not perform their due diligence, thereby resulting in an injury. For a case of wrongful death, such injury would have to lead to the death of the individual in question.
For situations like these, the code of civil procedure lays down the following limitations:
- Legal action against the doctor, medical professional or staff must be taken within three after the time of injury.or,
- Action must be taken within one year of the discovery of such injury or can be expected to discover such injury.
What happens sooner will set the statute of limitation for a particular case.
Fraud or concealment on the part of the defendant is considered a valid exception to bypassing this deadline.
Governmental Negligence: Suing the State of California
A case involving any government body or employee is subject to an extremely short statute of limitation of six months. It encompasses deaths arising out of medical malpractice as well as personal injury as discussed above. However, the involvement of a governmental entity reduces the time frame down to just six months from the cause of action.
This is laid down under section 911.2 of the California Government Code.
In circumstances like these, it is important to know the credentials of the person involved, in what capacity they have committed their act of negligence and whether it was committed during their course of duty.
There’s an Exception to Every Law
While the wrongful death statute of limitations may seem restrictive, there are exceptions to them as well. Some of these include the absence of the defendant, mental incompetence, bankruptcy, and even a judge’s discretion.
The truth is, exceptions are subjective and your case must be analyzed independently. A wrongful death lawyer or an attorney who specializes in personal injury law or medical malpractice will be able to advise and assist you in your course of action.
Other Relevant Laws You Need to Know
In addition to familiarizing yourself with the wrongful death statute of limitation, you must also examine whether you have the authority to pursue legal action.
Only those authorized under section 377.60 of the California Code of Civil Procedure can pursue a wrongful death lawsuit. The section requires the plaintiff to be related to the victim as a spouse, domestic partner, child, financial dependents or through a successional relationship.
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