I am a law school graduate. What I offer is mere information, not to be construed as forming an attorney client relationship.
I am not sure what the last part of your question was, but if you are asking about a lawsuit, generally this is how it goes:
1. You can sue for wrongful death probably under this set of facts. You need to hire a personal injury attorney who is experienced with wrongful death suits in your state.
To do this, try attorneypages.com or your state bar association's lawyer referral program.
2. Read the following:
WHAT IS A WRONGFUL DEATH CLAIM?
A wrongful death lawsuit alleges that the decedent was killed as a result of the negligence (or other liability) on the part of the defendant(s), and that the surviving dependents or beneficiaries are entitled to monetary damages as a result of the defendant's conduct.
Under "common law" (the general legal principles passed from England to the United States over hundreds of years) this type of claim did not exist. It was reasoned that the claim died with the victim, and the surviving family members could not claim damages from the person who caused the victim's death. To correct this injustice, the individual states have passed "wrongful death statutes" over the years, and some form of wrongful death claim action exists in all state jurisdictions today. While they all follow some general principles, each state jurisdiction is unique, since each state has drafted its own form of "wrongful death statute."
This section of FreeAdvice does not attempt to describe the 50 different rules for each state, but instead provides some of the general principles behind wrongful death claims. If you believe you have a valid claim for the wrongful death of a family member, you should consult an attorney from your local area regarding the requirements for your particular jurisdiction.
WHAT IF THE PERSON DIES BEFORE A LAWSUIT IS BROUGHT?
In general, a "survival statute" preserves a victim's cause of action against a defendant after the victim dies. The estate or surviving dependents assume the victim's cause of action against the defendant until the matter is settled or tried.
In contrast, a wrongful death claim is a new cause of action which arises from the victim's death, and is brought by the surviving beneficiaries or dependents of the deceased victim.
For example, Victim, (married with two children) is injured in a severe automobile accident, caused by the negligence of Defendant. Victim is hospitalized and sues Defendant. Before Victim's case is heard, Victim dies as a result of the injuries sustained in the auto accident. Victim's surviving spouse may "step in" and pursue Victim's claim against defendant. The surviving spouse and children may also be able to pursue a separate wrongful death claim against Defendant for their damages incurred in Victim's death. While these claims are separate, they are frequently consolidated together by the court before trial.
Again, there are variations in each state as to wrongful death claims and survival statutes. Some states have consolidated these separate claims into one hybrid statute, while others have restrictions or conditions on one or both.
WHAT ARE THE ELEMENTS OF A WRONGFUL DEATH CLAIM ?
Generally,
the death was caused, in whole or part, by the conduct of defendant
the defendant was negligent, or strictly liable, for victim's death
there is a surviving spouse, children, beneficiaries or dependents and
monetary damages have resulted from the victim's death
WHO CAN FILE A WRONGFUL DEATH CLAIM ?
This will depend on your state's statutory language, but generally immediate family members (i.e. spouses, children and parents) can pursue a wrongful death claim (although minors until 18 years of age may require a "guardian ad litem" to represent their interests in court). In addition, some states may also extend the potential group of plaintiffs to grandparents, legal dependents, or members of the extended family.
WHEN MUST A LAWSUIT FOR WRONGFUL DEATH BE FILED ?
Each state has its own "statute of limitation," which defines the time frame during which a lawsuit must be filed. The time usually runs from the time of the victim's death, although some states may allow a lawsuit to proceed if the act which caused the death was not discovered until later (for example, the spouse of the victim does not discover until the following year that the victim's death was caused by the negligence of the treating doctor. In this case, the time frame to file a lawsuit may run from the date the spouse discovered the treating doctor's negligence, rather than the date of the victim's death).
A claim, even a valid claim, may be denied if it is filed after the statute of limitation has run. If you believe that you may have a valid claim for wrongful death, it is important that you speak with a qualified attorney at your earliest opportunity to preserve your rights. In addition to protecting your claim in court, early action may also help to preserve evidence, or locate witnesses, that you may need to win your case.
WHAT KINDS OF DAMAGES ARE RECOVERABLE IN A WRONGFUL DEATH CLAIM?
The following damages may be recovered in a wrongful death action:
Immediate expenses associated with the death (medical & funeral):
Loss of victim's anticipated earnings in the future until time of retirement or death;
Loss of benefits caused by the victim's death (pension, medical coverage, etc.);
Loss of inheritance caused by the untimely death;
Pain and suffering, or mental anguish to the survivors;
Loss of care, protection, companionship to the survivors;
General damages; and
Punitive damages.
Depending on the jurisdiction, some of the listed damages may be barred or restricted by statute. Also, some of the listed damages may be hard to prove and thus be considered too speculative by the court. As a result, they may be struck or restricted. Punitive damages may require a higher level of proof (see below).
Depending on your jurisdiction, plaintiffs may be able to recover interest calculated from the time of death, the time the damages were incurred, or from the time of the filing of the lawsuit. Finally, most of the damages for future loss (such as the victim's anticipated earnings) will be reduced to "present value" (discussed below).
HOW ARE FUTURE DAMAGES CALCULATED, AND WHAT IS "PRESENT VALUE" ?
Many states have adopted life expectancy tables for use in calculating future losses. It is common to take the victim's earnings at the time of their death and calculate the remaining years until retirement or expected death to figure future loss of earnings. Life expectancy table are also used to calculate loss of benefits, such as the amount of pension benefits which would have been available had the victim lived.
Since a settlement of the trial verdict is calculated at one time, the amount of damages to the plaintiffs must include not only damages until the time of settlement or verdict, but also those which reasonably would have been incurred in the future. However, to avoid overcompensating a plaintiff it is common to reduce future losses to present value, The amount of future damages will be calculated, then reduced to an amount that will equal the full amount if it is conservatively invested. As with life expectancy tables, many states have codified how future damages are reduced to present value.
WHEN ARE PUNITIVE DAMAGES AVAILABLE ?
Punitive damages are awarded not to compensate the plaintiff, but to punish the defendant. As a result, punitive damages cannot be recovered unless it is proved that the defendant's conduct which caused the victim's death was intentional, malicious, or egregious (or whatever terms are used in your jurisdiction to define exceptionally bad conduct).
There is currently a movement in many states to limit, restrict, or abolish punitive damages. Again, you should speak with an attorney at your earliest opportunity if you will want to file this type of claim.
