After the tragic death of a loved one, it’s time to explore your legal options. If someone negligently caused your loved one’s death, you may have a case for legal action.
In this situation, many people wonder how a survival action differs from a wrongful death case. Let’s take a closer look at each option so you know the difference.
Understanding a Survival Action vs. a Wrongful Death Action
A survival action is a case that can be brought if the deceased person survived an accident and lived for a period of time. The claim is brought to recoup damages to the decedent that occurred during the post-accident living period and may include things like medical expenses, their pain and suffering, and their loss of earnings.
However, compensatory damages are limited to the period of time between the accident and death. So if the person lived for one week in the hospital after an accident, the survival action would address only the medical costs and loss of earnings that occurred during that week alone.
Now let’s contrast this with a wrongful death action. This type of claim is for the surviving heirs of the deceased. It addresses the emotional losses and financial losses of those left behind.
A wrongful death case can involve longer-term losses that take into account the ongoing devastation occurring due to the person’s death. This is often an overall higher value than a survival action, but not always.
Survival Actions and Wrongful Death Cases From a Lawyer’s Perspective
At Sally Morin Personal Injury Lawyers, one thing we’ve noticed in our practice is that you don’t always want to bring a survival claim even if the decedent lived for a short period of time after the accident. The reasoning here is that although the emotional damage may be extreme, the largest single cost during a short survival period is usually the medical expenses. If you initiate a survival claim in this situation, you’re basically just making a claim to repay the insurance company who paid the medical expense in the first place. That doesn’t make much sense for a grieving person to tackle this futile exercise during such a difficult time.
However, if the decedent had assets and their estate will be going through probate – especially if it’s obvious that the hospital will be seeking repayment from the estate – a survival action might make sense. The heirs can use the survival claim to keep the estate complete.
Also, if the decedent lived in pain for a long time after the accident and then eventually died as a result, there is likely a very significant claim for the decedent’s pain and suffering, which may make a survival action worth the effort and the obligation to pay back the medical insurance company.
Before Making a Decision, Talk to a Lawyer
As you can see, it’s quite complicated to decide whether you want to bring a survival action or wrongful death claim. It involves numerous people and organizations as you do the challenging work of deciding what’s best for you, your family, and the memory of your loved one.
Seek a consultation from a wrongful death attorney who has the wisdom and skill to help you determine the right move. The team at Sally Morin Personal Injury Lawyers has extensive experience with California wrongful death claims and survival actions, and we’d be glad to help you decide what to do next.
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After an accident, contact the attorneys at Sally Morin Personal Injury Lawyers. We handle many types of personal injury claims. We believe you should be able to focus on recovering from your accident while we handle the legal details.
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Video Transcript
How does a survival action differ from a wrongful death case? A survival action is basically what it sounds like. It’s a case that can be brought if the person who ended up dying in the accident survived the accident for some period of time. A survival action is a claim that is brought for damages to the decedent. So that would be for their medical expenses, their pain and suffering, their loss of earnings. But it’s limited to the period of time between the accident and the death. If they only lived for a week, you would make a survival action for their medical expenses, for their loss of earnings for that one week that they missed work and for any property damage that they incurred. But a wrongful death case, on the other hand, is for the survivors, for the heirs. Let’s say the people who survive the death of their loved one. It’s for their damages. Their emotional losses, their financial losses. Those are different in when you can bring them, they’re different in the types of damages you can seek. One thing I’ve noticed though in my practice is that you don’t always want to bring a survival claim even if the decedent lived after the accident for some period of time because oftentimes you will just be bringing a claim for medical expenses. If, let’s say they live for a week after the accident, their emotional damages, that can be very serious or whatever. But if you’re just getting a claim for their medical expenses, you’re basically just making a claim to pay back their insurance company who paid for their medical expenses. It doesn’t always make sense. However, if the decedent had some assets and is going to have, their estate is going to go through probate or they have a lot of assets that perhaps can be attached by the hospital or the bills would be paid out of the estate, you might want to make the survival claim so that the estate stays complete so that the heirs all receive the money they were supposed to receive via the will or the trust or what have you. It’s really complicated as to whether you want to bring a survival action or not and that’s why you want to seek a consultation from a wrongful death attorney so you can determine whether that’s the right move for you or not.
