Surviving family members may have the right to bring a wrongful death when someone dies due to another party’s negligence, intentional wrongful act, or recklessness. Wrongful death claims differ from other types of personal injury cases in several ways.
You may also hear of something called a survival action.
A survival action can be filed in conjunction with a wrongful death lawsuit, but they are two different types of claims. Contact a Los Angeles wrongful death lawyer at Weinberg Law Offices to learn more about your family’s rights after losing a loved one.
What Is a Survival Action?
A survival action compensates the estate for the deceased person’s financial losses prior to their death.
The decedent’s estate can file a lawsuit to recover the damages the victim could have sued for had they survived the accident.
Potentially recoverable damages in a survival action in California include:
- Medical expenses,
- Lost wages,
- Property damages,
- Pain and suffering, and
Compensation for disfigurement and pain and suffering is new for 2022. Previously, you could only pursue economic damages such as medical expenses or property damage.
The critical factor with a survival action is that the deceased must have survived for some time after the wrongful act before passing away.
If your family member died immediately, a survival action might not be possible. The victim must also have some economic damages, no matter how minor.
Depending on the circumstances of the accident, the victim’s damages could be significant if they lived for a considerable amount of time after the accident.
A few examples of possible survival actions include:
- A car accident victim dies in the ambulance on the way to the hospital;
- Someone who died during hip surgery after sustaining a slip and fall accident at the grocery store;
- A nursing home resident who passed away from nursing home abuse and neglect; or
- Someone who dies a couple of weeks after a gunshot wound.
Contact our office right away if you believe that you have grounds for a survival action lawsuit in California.
We can help you determine what rights of recovery you have and explain the differences between a wrongful death lawsuit and a survival action in California.
Wrongful Death vs. Survival Action
A wrongful death lawsuit and a survival action in California have some important differences.
Here is a look at some of the most critical factors that differentiate these two types of claims:
- Wrongful death lawsuits can compensate surviving family members for their own losses. Survival actions compensate the deceased’s estate for the victim’s damages before they died.
- Eligible family members can still file a wrongful death lawsuit, even if the victim died instantly.
- Punitive damages are available in a survival action, but they are not available in a wrongful death lawsuit (except for a couple of situations).
- Wrongful death lawsuits must be filed within two years of the date of death. A survival action must be filed two years from the injury date or six months after the decedent’s death, whichever is later.
- The decedent’s personal injury claim can be rolled into a survival action after their death, while a wrongful death cause of action doesn’t exist until the person passes away.
- Close family members can file wrongful death lawsuits, while the estate’s personal representative files survival actions.
- You cannot ask for post-death damages in a survival action.
- Who qualifies to file a wrongful death lawsuit is different (only the personal representative can file a survival action).
- Surviving family members cannot ask for their own pain and suffering in a wrongful death lawsuit. In contrast, a survival action can include the decedent’s pain and suffering (for cases filed after December 31, 2021).
Understanding the differences between survival actions and wrongful death lawsuits can be confusing.
The easiest way to comprehend a survival action is to recognize that the estate’s personal representative assumes the decedent’s legal rights.
Contact a Los Angeles Wrongful Death Lawyer
Contact a California wrongful death lawyer at Weinberg Law Offices if a close family member died due to another party’s negligence, recklessness, or wrongful act.
We understand what a tragic time this is for your family. You should be focused on your family, not trying to figure out the claims process for a wrongful death lawsuit or survival action in California.
Weinberg Law Offices is committed to helping grieving families and can assist you in determining your legal rights.
Our skilled legal team will work diligently to fight for your family’s rights. Contact our office today to schedule a free, no-obligation consultation.
Disclaimer: This content should not be construed as legal advice.