If you or a loved one dies before a personal injury lawsuit concludes, the hope of recovering damages doesn’t necessarily die.
While most people are familiar with wrongful death lawsuits, there is another kind of lawsuit that can pursue most of the same kinds of damages that are available in a personal injury lawsuit, even if the injured party has since died from their injuries. This type of lawsuit is called a survival action.
How Is a Wrongful Death Case Different from a Survival Action?
The key distinctions between a wrongful death lawsuit and a survival action concern who the injured party is, who can file the lawsuit, and what the possible damages are.
Who Is the Injured Party?
In a wrongful death lawsuit, the injured party isn’t the deceased – it’s the loved ones they left behind, especially if they were financially dependent on the deceased. Although wrongful death lawsuits can come about because of someone’s untimely death due to another person’s negligence or wrongful acts, the focus of the recovery is on how the death impacted the deceased’s close relatives.
In a survival action, the deceased is the injured party because they were either already involved in a personal injury lawsuit or could have filed one if they lived long enough to do so. Survival actions can proceed much like personal injury lawsuits, with the important caveat that the plaintiff is the deceased’s estate.
Survival actions typically occur when someone was injured in one event but dies for an unrelated reason. For example, when someone is in the hospital after a slip-and-fall injury but dies after contracting COVID-19.
Who Can File the Lawsuit?
In Missouri, generally the deceased’s spouse, children, and parents are those who can seek damages in a wrongful death lawsuit. Children may be biological or adopted, but an adopted child doesn’t have the right to file a wrongful death lawsuit for a biological parent.
Again, these are the people who can file a wrongful death lawsuit because they would be considered parties injured by their loved one’s death. If you are unsure if you have legal standing to file a wrongful death lawsuit, consulting with an attorney is the best thing to do.
By contrast, only the personal representative of the deceased’s estate can file a survival action. If the deceased didn’t name a valid executor in their will or died intestate, the representative may be a successor-in-interest named in the will or who would inherit according to intestate succession.
What Are the Possible Damages?
If you are pursuing a wrongful death lawsuit, the damages you can recover will differ from those recoverable in a survival action. Remember that these damages reflect the impact your loved one’s death had on you.
Possible wrongful death damages include the following:
- Pecuniary (financial) losses occurring directly because of a loved one’s death
- Funerary expenses
- Loss of consortium and companionship
- Loss of comfort
- Loss of guidance and counsel
If you are pursuing a survival action, the damages are relevant to what the deceased incurred from the time they were injured to the time they died.
These damages can include the following:
- Lost wages
- Pain and suffering
- Disfigurement
- Medical expenses
- Property damage
- Punitive damages
Contact Us for Legal Assistance
If a loved one has died and you are evaluating your legal options to pursue a recovery on the behalf of their estate or yourself, you can learn more by consulting with us at Bertram & Graf, L.L.C. Our attorneys are dedicated advocates for our clients and can guide you through a wrongful death and/or survival action lawsuit.
For more information, schedule a consultation with us by contacting Bertram & Graf, L.L.C. online.