Part B of the article series on wrongful death claims in a New Jersey medical malpractice lawsuit contains information about New Jersey wrongful death statutes: who can bring a claim and what damages are recoverable. To read more about New Jersey's wrongful death statute and the statute of limitations in a wrongful death medical malpractice case, click here for Part A of this article.
New Jersey's wrongful death statute, Section 2A:31-2, provides:
"Every action commenced under this chapter shall be brought in the name of an administrator ad prosequendum of the decedent for whose death damages are sought, except where decedent dies testate and his will is probated, in which event the executor named in the will and qualifying, or the administrator with the will annexed, as the case may be, shall bring the action."
This basically means that if the deceased patient had a will, the executor or executrix must bring the claim. If the deceased patient did not have a will, a special administrator ad prosequendum must be appointed to bring the wrongful death claim. The action will be brought in either 1). the Surrogate's Court in the county where the deceased patient lived, or 2). if the deceased patient lived in another state, the Surrogate's Court where the negligence resulting in the death occurred.
Only financial losses are recoverable in a wrongful death action in New Jersey. Section 2A:31-5 provides:
"In every action brought under the provisions of this chapter the jury may give such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased, to the persons entitled to any intestate personal property of the decedent in accordance with the provisions of N.J.S.2A:31-4."
Pecuniary injury basically means financial or economic loss. Medical expenses and funeral expenses are generally easily calculated. However, the nature and extent of what the other financial losses are will vary with each case. Factors which affect the analysis of what is considered pecuniary loss include:
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