It may be possible for a surviving spouse to continue a personal injury claim after the other’s death. This is known as a survival action; a wrongful death claim may be filed in conjunction.
What is the difference between a wrongful death and survival action claim?
A wrongful death claim is filed by a personal representative of the deceased’s estate on behalf of surviving family members — such as a spouse, children or parents — who seek damages for the negligent actions that resulted in loss of life. A survival action claim addresses damages sustained by the deceased that would have been recovered had he/she lived.
So even though the deceased cannot continue a personal cause of legal action, it doesn’t mean the claim is now invalid. It just means that someone else, such as a surviving spouse, will continue the claim in the name of the deceased.
What types of damages are available under a wrongful death and survival action claim?
Survival action claims often address the deceased’s pain and suffering. So prior to passing, several factors will be considered when determining this type of compensation. For instance, the severity of the pain, the individual’s level of consciousness (awareness of the pain) and its duration will be considered.
With regard to a wrongful death, pain and suffering might not be included, but other psychological damages could be addressed. Examples include grief, loss of companionship and mental anguish.
Lost earnings are another form of compensation that could be addressed in a survival action claim. This compensation would cover the time period between the accident that caused injuries and the individual’s death. In a wrongful death claim, lost earnings would cover from the time of the loved one’s death and address expected earning potential (what the person would have monetarily contributed to the family). These also may include fringe benefits, such as healthcare coverage.
A wrongful death claim or survival action also addresses medical, hospital and funeral costs. But a wrongful death claim could include the value of services that would have been provided, such as taking care of the house or children.
Is an attorney necessary when pursuing a wrongful death and survival action?
Generally, it’s a good idea to seek legal advice when a loved one’s death was caused by the careless or reckless actions of someone else. Pursuing both a wrongful death and survival action claim can be complicated, and an attorney can help gather the necessary evidence to prove negligence.
Trying to determine the types of damages that can be pursued under each claim can be challenging, along with settling on a fair and full amount.
Talking to an attorney who is knowledgeable in wrongful death and survival action cases is important. A lawyer with 24/7 Injury Law can help a spouse or other family member understand his/her rights to compensation under both types of claims.