The Difference Between Wrongful Death & Survival Actions
Tragedy has a far-reaching impact on our lives. The emotional, mental, social, and financial cost of an accidental death is steep and difficult to predict. That’s why states allow estates to represent deceased parties in injury cases: namely, in survival actions and in wrongful death claims. The compensation won in injury cases provides the grieving with a measure of justice and closure, as well as the financial support they need to move forward.
Because these two cases look similar on the surface, people often misunderstand that they have two very different goals.
The Purpose of a Survival Action
In truly severe cases, a plaintiff still suffers from their injuries in the middle of a claim. For wrongful diagnosis (medical malpractice) cases or burn victims, it’s common to still be at risk from injury complications during the trial. Sadly, not every plaintiff lives to see the end of their case. In rare cases, a plaintiff or defendant will suffer a fatal accident during the trial process.
In any case, a survival action allows the decedent’s estate to continue the trial and fight for the compensation the plaintiff would have received if they had lived. Survival actions pertaining to personal injury fight for the damages suffered by the plaintiff, such as medical expenses and pain and suffering while still living.
Bottom Line: Survival actions fight for the damages suffered by a deceased plaintiff.
The Purpose of a Wrongful Death Lawsuit
These lawsuits seek compensation for the damages of a person’s death that affect other people. Wrongful death claims are filed by the decedent’s estate that is usually represented by an immediate family member known as the personal representative of the estate. Normally this is a spouse or child, but sometimes the estate can be represented by a parent, a sibling, grandchild or even a non-family member.
The damages sought by a wrongful death claim include:
- Losses from medical care and funeral expenses
- Loss of the victim’s expected earnings
- Loss of benefits owned or earned by the victim
- Loss of companionship or consortium for spouses
- Loss of parental care and guidance for children
Unlike a survival action, the plaintiff in a wrongful death case is not the decedent—it’s decedent’s survivors. Note that relatives who contributed to their loved one’s death are barred from filing wrongful death claims.
Bottom Line: Wrongful death actions fight for the damages suffered by the family members of a victim of negligence.
How Damages Are Calculated in a Wrongful Death Case
An effective wrongful death case focuses on how the victim’s death adversely affects the survivors of the victim, either emotionally or financially. How the court calculates these damages will vary from case to case. For a wage earner, the court will calculate lifetime earnings from their age at death to their likely age of retirement (subtracting the cost of living).
For a non-wage earner—like a stay-at-home parent, for instance—the damages will be calculated from how much it would cost to replace the services offered by the victim. For instance, a wrongful death case filed by a mother’s estate might be for the costs of child care, cooking, companionship, and other duties fulfilled by mothers.
It’s important to keep in mind that the right to file a wrongful death claim or a survival action is not a given—cases like these are allowed under state statutes. All states, fortunately, have statutes allowing family members to sue for damages following the death of a loved one due to negligence.
If you have any questions regarding your rights after tragedy strikes, turn to a firm with a decades-long history of winning compensation. Stewart Tilghman Fox Bianchi & Cain, P.A. is here for you.