At the heart of a wrongful death case is the idea that some other person or people caused the death of your loved one through negligent or intentional actions. That may mean having caused an accident or committed an act of medical malpractice. Your wrongful death attorney must be able to prove causation to either secure a settlement or to convince a jury to award compensation.
What is Causation?
There’s a very simple legal test for determining causation in a wrongful death lawsuit. It’s known as the “but for” test, and involves you proving the statement “But for the actions of Person X, the death would not have occurred.” Or in other words, if the person or people you’re suing hadn’t acted the way they did, your loved one would still be alive. That’s what you need to convince a judge or jury to believe.
Another piece of causation is the degree to which the actions of the person you’re suing contributed to your loved one’s death. There’s another test called the “substantial factor” test that involves showing that the other person’s negligent or intentional actions substantially contributed to the wrongful death. As an example, if your loved one was in a car accident caused by the person you’re suing and died some days or weeks after the accident, you would have to draw a connection between the car accident and the death. Even if your loved one was seriously injured in the accident, but then died of an unrelated heart attack or cancer, then your claim falls apart. There has to be a relationship between the other person’s actions and the death.
Illinois has a legal principle called contributory fault that means if your loved one took some unreasonable action, or failed to take a reasonable action, in such a way that he or she partly contributed toward the events that resulted in his or her death, then the amount of compensation you can recover is reduced by the amount of fault attributed to the person who passed away. If a judge or jury determines that your loved one bears more than 50 percent of the fault, then 740 ILCS 180/2 says you get nothing.
Your compensation also can be reduced if you are determined to bear any of the fault for the death. Again, if your fault exceeds 50 percent, you are barred from recovery of damages.
To prove causation, your wrongful death lawyer will need to gather all of the information available about the actions that are believed to have resulted in your loved one’s death. If the death happened because of a car crash or a slip-and-fall, then your attorney will need to compile eyewitness testimony, photographs of the scene, and any accident reports that exist. Your lawyer may hire an accident reconstruction expert or a private investigator to help piece together the story of what happened.
If the death was because of medical malpractice, your attorney will want all of your loved one’s medical records — not just from the incident that resulted in your family member’s death, but past records as well. Your lawyer will need to draw that line between the treatment or lack of treatment and your loved one’s death, and rule out that there was some other medical reason that caused the death or substantially contributed to the death.
An Illinois lawyer with experience handling wrongful death settlements and lawsuits can discuss with you how the facts of your case tell the story of causation, and evaluate the likelihood that you can recover compensation for your losses. Call us at (312) 236-2900 for a free consultation.