The Discovery Rule and Time Limitations

States differ in the case of deaths caused by harmful substances in regard to time limitation periods. The main limitation period is from the date of the death that ends no matter when the cause of death was discovered. The other is from when the cause should have been known or reasonably discovered. For example, if the cause was not discovered until 10 years after death, no case could be filed because the overall time limitation was 6 years, even if it was not possible to know about the cause until that time.

No matter what the cause of a wrongful death, because of the time limitations, it is important to consult an experienced wrongful death attorney as soon as possible. Even if there is only a slight possibility of a wrongful death, it is better to find out if there is a viable case and what the time limitations are.

Wrongful Death Categories

Medical Malpractice

In order to prove a medical malpractice wrongful death case, the medical records of the decedent must be obtained. Often this information is protected by the physician-patient privilege unless the patient has waived this privilege to the claimant. Even if a patient is deceased, the doctor-patient privilege is not necessarily removed. The decedent's spouse or representative (such as next of kin), may waive this privilege in some states.

Even with a patient's authorization prior to death, health care providers do not want to provide their records to attorneys. Not all public heath laws specify information on disclosure to attorneys. To obtain a court order for records from any provider of medical care for another person is possible, yet formalities have to be in place for a judge to consider allowing the release of these records. A personal representative for the deceased is normally appointed and it must be stated that the representative is considering legal action pertaining to the records due to the possibility of negligent acts, including wrongful death. The healthcare provider would then be required to release requested documentation with the exception of information that may disgrace the memory of the deceased.

Once a malpractice or personal injury case is filed, even prior to death, the doctor-patient privilege is relinquished in regard to all related medical records. The decedent's family may receive settlement for medical and other costs, as well as pain and suffering experienced before death. In order to receive compensation, seek advice from an experienced wrongful death attorney as soon as possible when questions arise to ensure your case is pursued within time limitations action to obtain the best possible outcome.