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Is a Criminal Prosecution Required to Pursue a Civil Wrongful Death of a Child Case?

By David Wolf, Attorney
Published by Child Injury Lawyer Network


When a child dies at a day care center, school, home, or other location, the parents of the child may be able to pursue a civil wrongful death case when the negligence of others caused the death of the child. As a Child Injury Lawyer, I am often asked the following question:

Is a criminal prosecution required to pursue a civil wrongful death of a child case?

In most States, the simple answer to this question is “No”.

It should be noted that the proof standards for criminal cases differ from those in civil cases. Furthermore, the “decision makers” for a criminal case are different than those in a civil case. In a criminal case, the incident is investigated by the local police, State police, state attorney / prosecutor, and / or social services. The decision to prosecute is usually jointly made by law enforcement and the state attorney / prosecutor. While the family of the victim have input, it is ultimately up to law enforcement and the state attorney / prosecutor as to which criminal cases get pursued. Once filed, the disposition of the case is decided by the judge, jury, or the state attorney / prosecutor through a dismissal, plea deal, or a verdict.

The “decision makers” in a civil case are quite different. The decision as to whether a civil case or claim is filed belongs to the family (typically the parents) and a private attorney retained by the family. There are a number of factors that are considered when making a decision to pursue or file a case for the wrongful death of the child. When the cause of death is questioned or complicated, medical testimony from a pathologist, medical examiner, and / or other medical providers would be necessary to establish the link between the negligence and the cause of death. In addition, there may be challenges to how the incident or accident took place. Were the caregivers or supervisors of the child negligent? Was the incident foreseeable? Was the incident preventable?

When an infant / toddler dies at a day care center, there are often times many questions or issues as to the cause of death and preventability of the death. This is especially true when a child becomes unresponsive while sleeping or at rest. There can be a number of reasons or causes for the death of the child. Some result from negligence which must be proved by the family / attorney on behalf of the child. Because of the complexities of these and other wrongful death cases, it is often times helpful for a family to hire a Child Injury Lawyer for advice, consultation, and legal representation. Most injury cases including wrongful death cases are handled on a contingency basis which means that there are no attorney fees or costs owed to the Child Injury Lawyer unless there is a financial recovery or settlement on the case.

A recent lawsuit was reported in Lincoln, Nebrasksa. It was reported by the Associated Press and other news outlets that the parents of a 1 year old child died on January 3, 2011. There were no criminal charges filed regarding this matter. The child was enrolled in the Stay N Learn Day Care Center. It was determined that the child suffered a skull fracture and bleeding on the brain. You can read more about this matter at lawsuit filed in Lincoln – Nebraska – Wrongful Death of Child – Day Care Center. In this case and others similar to it, there will likely be testimony and debate regarding the cause of the injuries, timing of the injuries, role of the day care center, preventability of the injuries, and other issues.

The book titled – The ABCs of Child Injury – Legal Rights of the Injured Child – What Every Parent Should Know – has chapters on Day Care Center Injuries, School Injuries, Playground Injuries, and other topics. You can get this book for free at The ABCs of Child Injury.

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