Important Differences Between Wrongful Death Claims and Injury Claims

No one wants to think about facing the loss of a loved one in an accident.  But if the worst happens, you need to know how you can seek justice from someone who may be responsible.  In Virginia, a lawsuit resulting from a person’s death caused by someone else is known as a “wrongful death” action.  It must be brought by the personal representative of the estate of the person who has died.  This is usually a surviving spouse, or parent, or other close relative or friend.

The standard to prove that someone else is responsible is roughly the same in a wrongful death action as it is in a personal injury action.  If the  person responsible for the death was negligent or otherwise committed some action or inaction that led to the death, then he or she may be liable.  Beyond that, however, there are several important differences between wrongful death cases and personal injury cases in Virginia.


The damages available in a wrongful death case are different and more limited than those available in a personal injury case.  In a personal injury case, an injured person can recover for the damages that he or she suffered, including categories like medical expenses, lost wages, pain and suffering, and potential future treatment.  In a wrongful death case, however, the damages are awarded to certain family members to compensate them for the loss of their loved one.  These types of damages are limited in Virginia by statute, and they can be found at Virginia Code § 8.01-52.  They include funeral expenses, bills for treatment of the injury that resulted in death, loss of income and services that the person would have provided, and sorrow and mental anguish suffered by the family members left behind.  Determining which damages are permitted in a wrongful death case may be complicated, and proving them requires detailed evidence.

Statute of Limitations

How long someone has to file a lawsuit is known as the statute of limitations.  For more information, please see  When someone dies in an accident, the rule in Virginia is usually that a lawsuit must be brought within two years from the date of death.  This is not always the case, however, and it is best to consult an attorney to make sure that you don’t accidentally lose any of your rights.

Dead Man’s Statute

There is special rule of evidence in Virginia that applies to certain statements of a person who is deceased or otherwise not capable of testifying.  This rule is contained in Virginia Code § 8.01-397, and it is commonly known as the Dead Man’s Statute.  An overly simplified explanation of the rule is that evidence offered against a party who has died cannot be admitted unless it is corroborated by someone who is not an “interested party.”  The other side of the rule is that relevant statements made by the person who has died are often admissible into evidence, even if they would have been kept out as hearsay if the person were still alive.  The Dead Man’s Statute very often applies in a wrongful death action, and how it applies is extremely complicated and could lead to many challenging hurdles in presenting your claim.  For any wrongful death case, it is critical to consult an attorney who is familiar with how the Dead Man’s Statute may apply so you can be prepared to face these challenges before they arise.