Chances of Winning a Wrongful Death Suit: How to Maximize Your Case

Suppose two families in Manatee County each lose a parent. In one case, a father is killed when a driver runs a red light on Cortez Road. In the other, a mother dies a few days after surgery from an infection the family believes the hospital should have caught. Both claims fall under the same Florida statute, but the family in the crash case would usually have a better chance of winning.

The Justice Department’s figures on wrongful death trials show the same pattern. Families won about a quarter of the medical malpractice cases and at least half of the others. Those trial figures leave out most claims, though, since few ever reach a jury. In the state courts the Bureau of Justice Statistics studied for 2005, only about 4% of the tort cases that closed that year were decided by a trial. The rest ended some other way, many of them in a settlement.

A lawyer weighing your chances under Florida or Ohio wrongful death law asks whether the claim is strong enough to be paid without a trial, and how it would do in front of a jury if it came to that.

Wrongful Death Success Rates at Trial

The most useful government numbers on wrongful death trials come from a 2001 survey of civil trials by the Bureau of Justice Statistics (BJS), the statistics agency of the U.S. Department of Justice. It covered the country’s 75 most populous counties and counted the trials that included a wrongful death claim separately, 452 of them out of roughly 11,900 civil trials. Families won about 36% of the time.

The 36% is an average of two very different groups. Nearly two thirds of the trials were medical malpractice cases, and families won 25% of those. The rest grew out of car crashes, unsafe property, defective products, intentional acts and other kinds of negligence, and in that group at least half of the families who went to trial won.

The median award to families who won was $961,000. It went above $2 million in the product liability cases and the other tort cases, and stayed under a million dollars in medical malpractice and in the car crash and premises cases.

These wrongful death figures are more than twenty years old, and they come from the country’s largest counties. They show a general pattern but can’t tell you what a jury in Manatee County or Cuyahoga County would do with your case this year. Results also vary from one courthouse to the next. In the 2005 BJS survey, plaintiffs won about 51% of all tort trials in Cuyahoga County, which includes Cleveland, and about 72% in Franklin County, where Columbus is. The Florida counties in that survey ranged from 54% in Orange County to about 64% in Palm Beach County.

A median is the midpoint, so half of the families who won received less than $961,000 and half received more. The figure leaves out every family that lost, and every claim that ended before trial, which is most of them.

The 2005 medians are far lower, largely because that sample covers injury trials of every size and not only deaths.

Settlement vs. Trial

In 2005, BJS counted trials in nearly 8% of the medical malpractice cases and about 3% of the car accident cases that closed that year, among the courts able to report those figures. For a strong wrongful death claim, then, a settlement is the usual way the family gets paid.

Ending without a trial doesn’t mean the family was paid, though. A continuing education presentation from Ohio State University’s medical center summarized Ohio’s 2013 data on medical malpractice claims of all kinds, and about three out of four of those claims closed with no payment at all. Most of them were abandoned or closed without any decision on the merits.

A jury can award more than the defense ever offered. The median award to plaintiffs who won a medical malpractice trial in 2005 was $400,000, about 17 times the median for tort trials overall. If the family loses at trial, there is no recovery at all, often after years of work. Half of the medical malpractice cases that BJS followed to a verdict took 30 months or longer from the day the complaint was filed.

What Affects Your Chances of Winning

A wrongful death case based on negligence has to prove the same four elements of negligence as any injury case. Someone owed the person who died a duty of care and breached it, the breach caused the death, and the death caused losses the law will compensate. The personal representative has to prove each of those on your family’s behalf, and most claims turn on some mix of the following.

• The evidence, and how soon someone goes looking for it. Crash reports, 911 recordings, video from nearby businesses, the vehicle’s event data, maintenance logs and medical charts all carry more weight than anyone’s memory. Some of them are deleted on a routine schedule unless somebody asks for them to be kept.
• How clear the fault is. A driver who ran a red light while drunk is a very different case from a death where the cause itself is disputed.
• Causation, above all in medical cases. When a patient dies in the hospital, the defense will usually argue that the illness would have been fatal anyway, error or no error, and only qualified medical experts can answer that.
• Any fault on the part of the person who died. It reduces the award, and past a certain point it can end the claim.
• Insurance. A judgment is worth only what the defendant can actually pay, so in a claim against an individual driver, that driver’s policy limits often set the ceiling on a realistic settlement.
• How well the losses are documented. Income records and the value of the work the person did around the house are the starting point for calculating wrongful death damages. Funeral and medical bills belong in the file too, along with testimony about the relationship your family lost.

Most claims that fail do so on one of those points, or because the deadline passed. Meeting the deadline is the part most within a family’s control, although the exceptions in both states are easy to misread.

Florida and Ohio Wrongful Death Laws

Who can file

Even if you are the spouse or a child of the person who died, you can’t file the wrongful death lawsuit in your own name. Both states leave that to the personal representative of the estate. Florida’s statute has the personal representative recover for the survivors and the estate together. The survivors, as the statute defines them, are the spouse, children and parents, along with blood relatives and adoptive siblings who depended on the person for support or services, in whole or in part.

Under Ohio’s statute, the claim is brought for the surviving spouse, children and parents, who are presumed to have suffered damages, and for other next of kin, who have to prove theirs. Opening an estate, if no one has done it yet, is usually the first practical step in filing a wrongful death claim.

Two years to file, with some exceptions

In most cases you have two years from the date of death to file, in Florida and in Ohio alike. Some of the exceptions give a family more time, and some give it less.

• Florida sets no deadline at all for a wrongful death claim against the person who committed a murder or manslaughter, and the family doesn’t need an arrest or a conviction before filing.
• Medical malpractice deaths in Florida run on a separate clock. The claim generally has to be brought within two years of the incident, or of when it was discovered or should have been, and no more than four years after the incident. If fraud or concealment kept the family from learning what happened, that outer limit becomes seven years.
• A Florida medical malpractice suit can’t be filed until the family has finished a presuit investigation and served a notice of intent on every provider it plans to sue. That starts a 90-day period during which no suit may be filed, and the deadline is paused while it runs.
• Ohio has separate rules for deaths caused by defective products, including, in most cases, a ten-year limit counted from when the product was first delivered to a buyer.

If the person who died was partly at fault

If a pedestrian crossing outside a crosswalk at night is hit by a speeding driver, and the jury puts 30% of the fault on the pedestrian, the family’s award is reduced by 30%. Florida and Ohio both work that way, cutting the recovery by whatever share of the fault is assigned to the person who died.

Past 50%, the claim can end altogether. Since Florida’s 2023 tort reform law, HB 837, a family recovers nothing if the person who died is found more than 50% at fault, and at exactly 50% the award is cut in half. Deaths caused by medical negligence are the exception, since the bar doesn’t apply to them and the award is only reduced. In Ohio, your family can recover as long as the person who died was not more at fault than everyone else combined.

Reductions like this are common in premises cases. Among the premises liability trials that plaintiffs won in 2005, BJS found the award cut for comparative fault about two times out of five, by roughly half on average.

Damage caps

Ohio caps noneconomic damages in many injury cases, including medical malpractice cases, but neither the general cap nor the medical malpractice cap applies to a wrongful death action. Florida’s medical malpractice caps are no longer enforced. The Florida Supreme Court struck them down for wrongful death cases in 2014, in Estate of McCall v. United States, and for personal injury cases three years later, in North Broward Hospital District v. Kalitan. A claim against a government agency is a different matter in both states, and damages against public entities can be limited.

Medical malpractice deaths in Florida

When a death in Florida is caused by medical negligence, adult children cannot recover for lost companionship or for their own pain and suffering. The parents of an adult child cannot recover for their pain and suffering either. Critics call this rule the “free kill” law. For this purpose the statute treats anyone under 25 as a minor child, regardless of the usual age of majority. Economic damages, such as lost support and funeral expenses, are still available.

A repeal bill, House Bill 6017, passed the Legislature in 2025 by votes of 104 to 6 in the House and 33 to 4 in the Senate, and the Governor vetoed it at the end of May. A second bill, House Bill 6003, passed the House in January 2026 and died in the Senate Rules Committee in March, so the rule is still in effect.

The rule is hardest on families when the person who died was unmarried and had no children under 25. If a woman in her early thirties dies after a diagnosis is missed in an emergency room, for example, her parents have no claim for their grief, however clear the error was.

What is left is the economic claim. It can include funeral and medical expenses and any support she gave her parents or, if she gave them none, the savings she would likely have built up over a normal lifetime, which the statute calls net accumulations. How much that comes to depends a great deal on her age and what she earned.

Deaths on the job

If your family member died at work, the first claim is usually for workers’ compensation death benefits, and in most cases you can’t sue the employer for wrongful death. Florida makes workers’ comp the employer’s exclusive liability, except when the employer failed to carry the required coverage or committed intentional misconduct that can be proven by clear and convincing evidence. Ohio gives employers that comply with its workers’ comp law the same kind of immunity from damage suits.

The protection workers’ comp gives the employer does not automatically extend to everyone else on a job site. When a lift tips over on a construction project and kills a worker, the company that made the lift may be liable, and in some cases so is another contractor on the site or the owner of the property.

A claim against one of them can go forward at the same time as the workers’ comp claim. If it succeeds, the workers’ comp insurance company will usually expect to be repaid out of the recovery.

How to Protect Your Case in the First Weeks

Several of the steps that help a wrongful death claim most are taken before a lawsuit is filed.

1. Have a lawyer send preservation letters right away. Businesses and trucking companies often delete video and vehicle data on a routine schedule, and a letter asking them to keep it, along with logbooks and maintenance records, does the most good before that happens.
2. Get the official records. In most cases that means the death certificate, any medical examiner or autopsy report, the police or crash report and the hospital chart.
3. Open the estate, or find out whether someone already has. Only the personal representative can file the lawsuit, in either state.
4. Keep every bill and pay record. Funeral invoices and medical bills go in the file, and so do tax returns, pay stubs and a list of the household work the person used to handle, since all of it feeds into the damages calculation.
5. Be careful with the other side’s insurance company. If an adjuster asks for a recorded statement in the first few weeks, you can say no, and it is better to talk to a lawyer before agreeing to one.
6. Mark the deadline on a calendar. For a Florida medical case, count backward from it, because the presuit process has to be finished before a lawsuit can be filed.

Choosing a Wrongful Death Lawyer, and What It Costs

Many wrongful death cases need an accident reconstructionist or a medical expert, plus an economist to calculate lost earnings, and very few families could pay for all of that as the case goes along. That is the main reason most wrongful death lawyers work on a contingency fee. The fee is a percentage of whatever is recovered, and if nothing is recovered, no fee is owed.

Case costs are a separate question. Filing fees, expert fees, deposition transcripts and charges for medical records add up over a case that can last a couple of years. Personal injury fee agreements differ on whether the client has to pay those costs back when there is no recovery, so ask about that directly, along with the percentage and whether it goes up if the case is tried.

It helps to hire a lawyer who handles wrongful death claims in particular, since the estate has to be set up correctly before the lawsuit can be filed and a Florida medical death case runs through a presuit process with deadlines of its own. Most of the questions worth asking a wrongful death attorney are practical ones: how many of these cases the lawyer has taken to trial, who will work on the file day to day, how the experts will be paid for and how often you will hear from the firm.

The Podor Law Firm represents families in wrongful death cases from offices in Bradenton and Palmetto, Florida, and in Solon, Ohio. The first consultation is free, and in it we go over what happened and which deadlines apply to your family. If you would like to set one up, reach out to our Bradenton personal injury attorneys.

Frequently Asked Questions

Is it hard to win a wrongful death lawsuit?

In medical malpractice cases, it often is. Those were the hardest wrongful death trials for families to win in the Justice Department’s figures, with roughly one win in four. Families won at least half of the trials that grew out of crashes, unsafe property, defective products and other negligence. Most claims end before trial, though, so for most families what matters is how strong the evidence is when settlement talks begin.

How long does a wrongful death case take?

Anywhere from a few months to several years. A claim can settle within months when fault is clear and there is enough insurance to pay it. A case that goes to trial moves through the same stages as any personal injury lawsuit and takes much longer. In the 2005 BJS survey, the median time from filing to verdict was about 23 months for jury trials and 30 months for medical malpractice cases.

Can we still recover if the person who died was partly at fault?

Usually, yes, as long as their share of the fault isn’t more than 50%. Florida and Ohio both reduce the damages by that percentage and bar recovery once it passes the halfway point. Florida makes an exception for deaths caused by medical negligence, where the bar doesn’t apply.

Who receives the money from a wrongful death settlement?

Mostly the surviving family members, and not necessarily in equal shares. The personal representative recovers on the family’s behalf, but the money isn’t simply added to the estate. Florida’s statute assigns different damages to different people, so a surviving spouse recovers for lost companionship, for example, while the estate recovers certain lost earnings. In Ohio, the probate court that appointed the personal representative has to approve the settlement, and it also approves how the money is divided among the beneficiaries.