There are a number of very important first steps that must be taken in a wrongful death claim to protect the rights of the deceased and the surviving family members or loved ones. Though legal issues are probably the last thing that the family wants to deal with following the death of a loved one, it is very important to address these issues.
Because the family and loved ones are dealing with far more important matters, it is highly advisable to seek the guidance of an attorney experienced in wrongful death matters. The Albuquerque personal injury attorneys at Collins & Collins, P.C. are here to help you through this difficult time by taking on the burden of the legal requirements necessary for protecting and pursuing a wrongful death claim
Appointment of Personal Representative Necessary for Collection of Private Documents
The first steps for the most part all involved the collection of records and documents surrounding the loved one’s death. The documents set forth below are essential for the evaluation of the claims and can typically be acquired without the assistance of an attorney or the courts.
Others which will be essential to pursue the claims will be protected by privacy laws requiring the appointment of a personal representative under the New Mexico Wrongful Death Act.
An experienced wrongful death attorney can help to get an eligible surviving family member or, depending on the circumstances, a third party trustee appointed personal representative.
The personal representative will then be able to collect all necessary records, even those such as medical and employment records which are protected by privacy. If necessary, which is sometimes the case, the personal representative may collect these records by subpoena from the court.
Gather Essential Documents and Records
It is important to gather a number of documents and records for a couple of reasons. First, these documents and records will be necessary for the pursuit of the wrongful death action. Second, these records are necessary for an attorney to evaluate the wrongful death claim. As mentioned, here and elsewhere, a wrongful death action follows many of the same principles as other personal injury claims.
This means that at a minimum there must be liability for the wrongful death. “Liability” invokes many issues that will not be addressed here. Suffice it to say that there can be death cases where there is no liability under personal injury law. This may be the case even where negligence of another was the cause of the death. One and perhaps the most frequent example involves work related deaths.
Incident Reports: These come in a wide variety of forms depending on the nature of the accident or incident that led to the death. In auto accidents, there would be police reports and extensive investigations related to the death. In work injuries, there will be at a minimum OSHA reports and there may be many other reports depending upon the industry.
Death Certificate: The death certificate can most often be collected without the assistance of an attorney or the appointment of a personal representative. The death certificate can be obtained by immediate surviving family members through the New Mexico Bureau of Vital Records.
This document is very important. The death certificate will state an initial finding regarding the cause of death. However, this statement of cause is not always entirely accurate and should not necessarily be taken at face value.
Report and Findings From the Office of the Medical Investigator: These reports are much more extensive than the death certificate. The death certificate should reflect the Office of Medical Investigator (OMI) report. However, on occasion, there are discrepancies. The OMI report will provide very valuable information with conclusions as to the causes of death.
Again, these are not always entirely complete or accurate. As such, they should be read carefully and submitted to an expert for review if there is cause for concern regarding the findings. On the other hand, these reports are generally accurate and typically sufficient for a determination of the cause of death.
Contact an Attorney Experienced in Wrongful Death Claims
These are only the minimal first steps in a wrongful death claim. There are many more that will be very important as the case progresses.
Wrongful death claims can be very complex and challenging. This reflects in part the magnitude of the damages. This alone will cause the defendant who is usually represented by an insurance company to dispute the claims at every turn from the cause of death, to liability, to fault and then to damages.
Due to the complexity of these cases and the fact that insurance companies will almost always dispute significant portions of the claim, it is exceedingly unwise to deal with the insurance companies without an attorney.
Do Not Deal With the Insurance Company Alone!
The insurance company will be looking for every opportunity to minimize the payout. This means that anything you say can and most assuredly will be used against you.
In short, do not talk to the other party’s insurance company without an attorney, if then. There is far too much at stake for you and your family to try to handle the insurance company on your own.