Q

My spouse survived for five days after a car failed to yield to the right of way, turning left into his motorcycle at the intersection of East State Street and Alpine Road in Rockford. Can I file a wrongful death lawsuit?

A

From the details provided, it sounds as though you may have a solid wrongful death case against the at-fault driver. However, you should discuss the details of your situation with a wrongful death attorney who can make that determination. If you do file a wrongful death suit, it will likely consist of two actions: a wrongful death action and a survival action.

The wrongful death action encompasses damages that occur as a result of your spouse’s death including loss of companionship, loss of economic support, and grief. It does not cover damages that are personal to your deceased spouse.

Damages resulting from a wrongful death action are paid directly to the surviving next of kin—typically the spouse or children. In order to obtain these damages, your attorney must review the medical evidence and prove that your spouse’s death was a direct result of the accident.  In addition, your lawyer must prove that if your spouse had not died, he would have been entitled to make a claim for personal injury damages.

The survival action makes a personal injury claim against the at-fault driver on behalf of your deceased spouse. It covers the period between the accident and your spouse’s death and allows his estate to recover damages including medical bills, lost wages, disability, disfigurement, and conscious pain and suffering. These damages are distributed according to the terms of the will, if one exists, or according to the rules of descent and distribution in the Illinois probate code, if a will does not exist.

Medical evidence is key in a survival action. In order to obtain damages for conscious pain and suffering, your attorney must prove that your spouse was able to perceive pain and discomfort during the time leading up to his death.

Losing a spouse or other beloved family member is painful. Let us help you with the legal aspects of this tragedy while you focus on your family. Contact us today to schedule a free case evaluation with a compassionate and experienced wrongful death lawyer.