What are my rights regarding my grandmother’s death as the result of botched surgery?

UPDATED: Feb 2, 2014

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What are my rights regarding my grandmother’s death as the result of botched surgery?

My grandmother was admitted to the hospital about 2 weeks ago due to her gallbladder. It was taken out in surgery but during the procedure the doctor punctured her large intestine. This caused her to pass away. Do you think that I would have a case?

Asked on February 2, 2014 under Malpractice Law, Virginia


FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

If someone dies due to the negligent, reckless, or deliberate behavior of someone else, then the surviving family members will be able to file a wrongful death lawsuit in order to collect damages for their loved one's untimely death. This is basically what a wrongful death lawsuit is - a civil court action filed to determine the amount of damages that surviving family members should collect due to the wrongful death of their loved one.

What Are the Grounds for Filing a Wrongful Death Lawsuit?

The premise behind a wrongful death lawsuit is that not only did the deceased person lose their life due to someone else's negligence, recklessness, or deliberate act, but their family members have been directly impacted both emotionally and financially due to the death.

In order to be successful in a wrongful death lawsuit, the surviving family members must establish two things:

    1. They must first prove that their loved one's death was in fact caused by someone else's negligence, recklessness, or deliberate act and not by their loved one's own action or inaction.


  1. If the grounds for #1 are met, then the surviving family members must next establish that they suffered measurable damages due to their loved one's wrongful death.

Common grounds for wrongful death lawsuits include an accidental death caused by an automobile accident, a work-related death or medical malpractice, or a death caused by an unlawful act during the commission of a crime.

Who Can File a Wrongful Death Lawsuit?

State laws dictate who can file a wrongful death lawsuit. In all states surviving spouses and children can file while in some states extended family members including grandparents and siblings can file.

In all cases the surviving family members will be forced to open a probate estate in order to be able to sue on behalf of their deceased loved one. If minor children are involved, then the court overseeing the wrongful death lawsuit may require that a guardian be appointed to look out for the best interest of the minor.

What Types of Damages Can Be Collected in a Wrongful Death Lawsuit?

Surviving family members can collect the following types of damages once they establish that their loved one's death was due to a wrongful act:

  1. Medical bills and burial expenses.
  2. Compensatory damages for lost wages that their loved one would have earned had they lived their normal life expectancy.
  3. Compensatory damages for the pain and suffering endured by the surviving family members due to their loved one's absence.
  4. In some states punitive damages that are intended to punish the person who caused the wrongful death and discourage similar behavior can be collected.

All states have statutes of limitation that dictate how long you can wait to file a wrongful death lawsuit before you will be forever barred from doing so in the future. If you believe that your loved one's death was caused by the negligence, reckless, or deliberate act of someone else, then consult with an attorney to understand your legal rights and to determine if you should pursue a wrongful death claim.

Based upon what you have written, I suggest you consult with a medical malpractice wrongful death attorney in your locality. One can be found on attorneypages.com.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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