What is a Survival Action After a Wrongful Death?
Written by AskTheLawyers.com™ on behalf of Grant Lawson with Metier Law Firm.
When a loved one passes away due to the negligence of another party, it may be possible to file a wrongful death claim or survival action to seek compensation for their damages and possibly the family’s loss. If given the option, many attorneys recommend filing a wrongful death claim, as the damages which can be sought tend to be far more comprehensive and include the emotional suffering and financial loss the family must endure as the result of the death. That said, if your loved one suffers an injury due to another party’s negligence yet passes away for unrelated reasons, a survival action may be your only option for recovery.
A survival action focuses on the losses of the injured person prior to their death.
In this sense, survival actions are considered significantly more limited than a wrongful death lawsuit, but may still provide a helpful means of recovering some of the losses sustained by the deceased due to their injury. These damages may include medical bills and lost wages suffered by the victim prior to their death.
One way to think about survival actions is that the damages the injured party could have recovered in a personal injury lawsuit had they not passed away may potentially be recovered in a successful survival action, including compensation for pain and suffering. This compensation would then go to the deceased’s estate rather than directly to the family.
Unlike a wrongful death claim, a survival action is filed on behalf of the deceased, not the bereaved family.
A survival action must be filed by the acting estate administrator representing the deceased; if the deceased did not appoint an estate executor or administrator prior to their passing, a loved one may file a motion to be named the acting estate administrator for the purposes of the survival litigation. In this situation, the estate administrator would act as a stand-in or substitute for the deceased. Eligibility requirements for filing a survival action may vary from state to state, so it’s a good idea to have an experienced wrongful death attorney evaluate your loved one’s case before deciding which direction to take.
Evidence that will need to be collected for a survival action includes but is not necessarily limited to the following:
- Medical records belonging to the deceased related to their injury.
- Medical bills related to their treatment.
- Evidence of wages lost during the injury’s treatment and recovery period.
- Testimonies from medical professionals who evaluated or treated the deceased’s injury.
- Testimonies from friends and family regarding the deceased’s injury-related suffering prior to death.
Certain types of evidence needed for a survival action can be difficult to obtain.
While some of this evidence might be readily obtainable for close loved ones of the deceased, certain types of evidence could be harder to obtain. Medical records and professional testimonies in particular can pose a challenge to family members trying to collect evidence on their loved one’s behalf. This is just one of the reasons it is considered particularly important to seek the help of a wrongful death attorney if you suspect your deceased loved one’s estate or family is eligible to file a survival action or wrongful death claim. An experienced wrongful death attorney can help evaluate the case, usually via a free consultation, collect evidence, and take the case to trial at no cost to you until the case is won.
To learn more about survival actions or for help filing, reach out to a wrongful death attorney sooner rather than later.