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How to Prove Fault in a Medical Wrongful Death Case

Doctor's Sthetoscope

When someone’s death results from another person’s negligence or intentional action, it is considered wrongful death. Losing a loved one after a misdiagnosis, surgery-gone-wrong, or another instance of medical malpractice may leave you feeling unsure about how to seek justice.

The first step is to contact a wrongful death lawyer and begin building your case. To achieve a positive outcome, you must demonstrate that a healthcare provider’s negligence directly caused your loved one’s death and that you deserve compensation for your losses.

Be aware that wrongful death claims are civil lawsuits, not criminal cases. Only civil prosecution awards damages to a deceased person’s family members. If illegal activity is also at play, your medical wrongful death attorney may also file criminal charges with the intent to fine or imprison the guilty party.

The burden of proof in a medical wrongful death case falls on the plaintiff, or the surviving family member who files a medical wrongful death claim. This means the defendant, or the healthcare provider accused of medical malpractice, is considered innocent until proven guilty. Here are the elements you must prove to win your wrongful death case.

Duty of Care

You must first demonstrate to the court that the healthcare provider had a doctor-patient relationship with the victim. This means the provider was required to act in the patient’s best interests and take steps to prevent foreseeable harm.

Breach of Care

Once you prove the duty of care, you must show that the medical provider breached this duty through negligence or intentional malicious action. Examples may include misdiagnosing or failing to diagnose an illness, prescribing the wrong medication, and making surgical errors.


This is the most challenging and crucial element to prove in a medical wrongful death case. Causation means the negligent healthcare provider’s actions led directly to the victim’s death or caused them to suffer severe medical complications.

For example, consider a case where a patient has a life-threatening disease they may not overcome, even after a successful surgery. If the surgeon makes a mistake and the patient does not survive, it may be difficult to prove that the error, not the life-threatening disease, caused the victim’s death.

Amount of Loss

If the court finds the healthcare provider guilty, you win your wrongful death suit. The amount of money you receive depends on your total losses. You can seek compensation for economic damages—such as medical bills, funeral costs, and loss of income—but you must be able to prove their monetary value. You may also seek non-economic damages, such as mental anguish and loss of companionship, as part of your claim.

The best way to get the compensation you deserve after a loved one’s passing is to work with an experienced medical wrongful death lawyer in New Jersey. With over 70 years of experience, Gelman Gelman Wiskow & McCarthy LLC is here to help you seek justice. Call us at 862-263-0770 or contact us online to schedule your free, one-hour consultation. A Spanish translator is available upon request.

  • In 2022, a year in which New Jersey courts were basically closed for trials, our firm still settled almost 100 cases for in excess of 8 million dollars.
  • Discuss the firm's 2022 settlements.
  • Results may vary depending on your particular facts and legal circumstances.
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