In California, there are two basic types of lawsuits which can be filed after a person passes away due to another’s negligence or wrongdoing: a wrongful death lawsuit and a survival action. In a wrongful death claim, the immediate family of the deceased files a lawsuit seeking damages for the family’s own pain and suffering, their lost companionship with the deceased, and any lost financial support. These damages are meant to directly compensate family members who have lost a parent, child, or spouse as a result of the defendant’s wrongdoing or negligence.
In a survival action, the personal representative of the deceased’s estate brings the lawsuit. This person “steps into the shoes” of the deceased, and brings a lawsuit for pain and suffering as if the deceased were still alive.
These claims are meant to compensate the estate of the deceased for any pain, suffering, medical bills, and lost wages that the deceased suffered in between the time of the accident and the time of death. Whether the person survived for only minutes after an accident, or held on for over a year does not matter—medical experts and other witnesses can testify to the amount of pain that the deceased suffered, and his or her estate will receive the compensation.
Unlike a wrongful death claim, the family of the deceased does not directly receive any compensation from a survival action. Instead, this money first goes to the estate, where it can be used to pay creditors or any other debts that the deceased may have had. After the estate is settled, what is left of the compensation from the survival action is distributed between family members according to either the deceased’s will or according to state law.
Often, a survival action is filed in conjunction with a wrongful death lawsuit. One or both of these claims may be appropriate depending on the circumstances, and an experienced injury attorney can let you know more about your options.
At the Trial Law Offices of Bradley I. Kramer, M.D., Esq., our knowledgeable staff of medical and legal professionals can evaluate your loved one’s survival action claim and will help you understand your legal rights. If you would like to speak with an experienced Beverley Hills personal injury attorney, contact Dr. Bradley I. Kramer today by calling (310) 289-2600 or use our online case evaluation form to have your claim reviewed for free.