No amount of money can compensate for the death of a loved one, and nothing is more painful than losing a loved one because of another person’s negligence. If you know someone, or you yourself have lost someone due to another’s negligence, you might have heard of the concept of a wrongful death lawsuit. There is also a type of case called a survival action. These two actions are statutory and strictly governed by state law.
Although they have the same premise, these two actions have major differences and we are here to help you decide which course to follow.
What is a wrongful death lawsuit?
Wrongful death describes the death of a person caused by negligence or recklessness of another person or people. A wrongful death lawsuit is filed by immediate family members to seek compensation for emotional and financial damages resulting from their loved one’s wrongful death. In order to have a strong case of wrongful death, there are four elements that the surviving family of the victim needs to prove.
- Negligence
The ones filing the lawsuit must prove that the victim’s death was caused by the defending party’s negligence in part or in whole.
- Breach of duty
It must be proved that the defendant has a duty to the deceased victim. Take, for example, medical health providers. They have a duty to exhaust all efforts in maintaining a patient’s health. It is the responsibility of the plaintiff to establish that the defendant owed a duty to the victim and the breach of this duty caused the wrongful death.
- Causation
Apart from proving the defendant’s breach of duty, the plaintiff must also prove that the defendant’s negligence was the cause of the victim’s death.
- Damages
Even if the plaintiff can prove the above-mentioned elements, they must also provide that the victim’s death caused quantifiable damages to the family.
All of these elements require strong convincing evidence and testimonies from expert witnesses in order to secure a victory.
What is a survival action?
A survival action is a lawsuit that is filed on behalf of a deceased estate for damages or injuries generated by the deceased immediately before dying. This means that survival action allows the deceased’s estate to claim for damages before the death, or to take over the personal injury claim the victim had until he or she died.
The Differences
There are two major differences between a wrongful death lawsuit and a survival action.
- A wrongful death lawsuit allows the family to file the lawsuit in the first place and to award the claims to the beneficiaries of the deceased. In a survival action, the claims go to the estate and not directly to the family of the deceased. The claims can then be divided among the family members following the deceased’s will.
- The family of the deceased may not recover any compensation for personal losses if only survival action is asserted.
Can you both sue using wrongful death lawsuit and survival action?
The answer lies in state law. There are states that allow both actions to be pursued while others do not allow recovery on both. Hiring a skilled attorney who specializes in wrongful death cases can give you the best course of action. An attorney will also know how to present and prove your claims in any court.
If you have any questions about wrongful death or a survivor action, do not delay in contacting us at DeZao Law. Our professional, courteous, and eminently qualified staff will fight for you and help you get the outcome you deserve.