Illinois wrongful death laws
now include damages for both pecuniary and punitive damages
Wrongful death lawsuits compensate families when someone has died because of negligence. This can include accidents, medical malpractice, and a host of other causes. Here’s what you should know about the ins and outs of Illinois wrongful death lawsuits.
A loved one’s death can make you sad, and sometimes angry. When they die of natural causes, or they’re elderly or ill, we can reach acceptance faster because we know it’s the natural cycle of life. But when someone dies in a way that seems… wrong… because it’s the result of negligence, the sting is even more pronounced and painful.
It’s natural to want to hold someone accountable for a death that could have been prevented. Whether it was an Illinois car accident, medical malpractice, drowning, a property hazard-related accident, or something else, we want to feel like justice has been served.
The law defines an Illinois wrongful death as being:
When a person dies as a result of another party’s wrongful act, neglect or fault. If the person would have been able to file a personal injury lawsuit for the cause of death if they had survived, then their survivors may file a wrongful death lawsuit.
Who may file a wrongful death lawsuit in Illinois?
The victim’s legal representative can file a wrongful death claim. This represents their estate and is on behalf of the victim’s surviving spouse or children. If there is no surviving spouse or children, other relatives, including the parents or siblings of the victim, may file the wrongful death claim. However, in that instance, the Illinois wrongful death claim is filed by the estate’s personal representative (i.e. the executor) and not by that family member.
What about non-family members?
Usually, the only people who can claim wrongful death damages are the victim’s spouse, children, or close relatives. The Illinois Wrongful Death Act does allow for a person who is not a family member to file a wrongful death lawsuit if they are executor of the victim’s will or if they are the court-appointed administrator of the estate if there is no will. A person could become an administrator by filing a petition in probate court.
This includes a person who is engaged to be married to the victim; a fiancé(e) may file a wrongful death lawsuit if they are the victim’s named executor or if they are appointed by the court. However, since the couple is not yet married, they do not qualify as a close family member and cannot recover damages in a wrongful death claim, except as a beneficiary of the will.
Damages for an Illinois wrongful death lawsuit
There are two causes of action for an Illinois wrongful death lawsuit:
- Direct wrongful death lawsuit. This compensates the surviving family for their grief, sorrow and mental anguish resulting from their loved one’s death.
- Survival action. This recovers damages that the deceased person could have received if they had survived. These can include pain and suffering, medical treatment and related costs, lost wages, funeral expenses, loss of enjoyment of life, and loss of consortium.
The spouse of a person who has died in a wrongful death may also file a separate claim for loss of consortium, which includes losses of both love and affection and services.
Types of damages received in an Illinois wrongful death lawsuit
The surviving spouse, children or next of kin in an Illinois wrongful death lawsuit may receive damages for pecuniary injuries. In other words, damages would include benefits for losses of wages, services, and other related costs.
If there are surviving children, this includes funds for education and other expenses. It also includes loss of consortium for the spouse, and loss of society for a child, parent or sibling.
As of 2023, an Illinois wrongful death plaintiff may also recover punitive damages. Punitive damages are in addition to the pecuniary damages and are intended to punish the defendant or serve as a deterrent to others for future liability. Prior to 2023, Illinois did not award punitive damages in wrongful death lawsuits.
The exceptions are that punitive damages are not available for medical malpractice, legal malpractice, or lawsuits against state or local government entities and employees.
Can you sue an Illinois hospital for a wrongful death, or is it medical malpractice?
Wrongful death and medical malpractice are not the same claim, but they can sometimes overlap.
Medical malpractice is when a medical professional or facility’s negligence causes injury, worsening illness, or death to a patient. A medical malpractice claim can provide damages to the patient for injuries they suffer while still living.
Medical malpractice could lead to wrongful death.
If a person dies from medical negligence, there are two resulting claims. First, there’s the medical malpractice claim for the injuries and damages from the time of the negligent action (or inaction) until their death. Damages for this claim include medical treatment, lost wages, pain and suffering, and other losses.
If they die, their medical negligence claim is filed by their estate. This is the survival action.
The wrongful death claim can be filed by their representative to compensate the family for their losses.
Statute of limitations and discovery rule for an Illinois wrongful death lawsuit
A statute of limitations is the amount of time a potential plaintiff has to file a claim following the injury. This varies by state, type of claim, and some other factors.
For an Illinois wrongful death lawsuit, the representative has two years from the date of death or from when the cause of death is determined. However, the Illinois discovery rule says that even if the date of death is within two years, the lawsuit must be filed within four years of the date that the claimant knew or reasonably should have known about the injury.
If you believe you should pursue an Illinois wrongful death claim, you can contact a qualified and experienced personal injury lawyer to guide you through the legal process.
Have you lost a loved one in a preventable accident?
Wrongful death lawsuits are particularly difficult because in the face of such a tragedy, families and loved ones must pick up the pieces of their life despite their grief and soldier on through the legal system, meeting each deadline and acting like it’s any other lawsuit. These are usually filed by husbands, wives, children, parents and siblings of the deceased with the help of a legal representative. Read more