What Claims Survive Death?
For families that are dealt the devastating blow of unexpectedly losing a loved one in an accident caused by another person’s wrongdoing, determining which lawsuit(s) to file is often at the bottom of the list of priorities. However, it is important to note that the legal system does provide an element of recourse for those grieving the tragic loss of a loved one. This can enable you to achieve some semblance of justice in the form of financial compensation on the victim’s behalf. A qualified Los Angeles wrongful death lawyer can walk you through all of your options.
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What is a survival claim?
When a wrongful death occurs, whether it was caused by a truck accident, a plane crash, an animal attack, or a premises liability accident, the decedent’s estate may file what is referred to as a survival claim on the victim’s behalf. The case is litigated, often by wrongful death lawyers, as if the victim had actually survived, as the estate is only eligible to recover damages directly related to what the victim incurred due to the accident. In other words, the estate is attempting to recover what the victim could have recovered in a personal injury lawsuit if he or she had not died.
Damages that may be available to you
In general, the longer the period between the accident and when the victim died, the more a potential survival claim will be worth. Common damages sought in survival actions include the following:
- Medical costs that the deceased incurred in the period between the accident and his or her death
- Expenses for the victim’s burial and funeral
- Lost earnings, as it is unlikely that the victim was able to continue working with such serious injuries
- Physical and emotional pain and suffering that the deceased incurred in the period between the accident and his or her death
When it comes to the medical bills, the longer the victim lived following the accident, the more time and opportunity there would have been for these to accumulate. Especially for life-threatening injuries, there is no limit as to what may have been pursued or required in an effort to save the victim’s life, and many of these surgeries, procedures, or other courses of action can be quite costly.
If the victim was injured in a crash with a drunk driver, then eventually died following several surgeries and a lengthy hospitalization, there may have been an extensive period in which the deceased was still alive but unable to work.
There is also an element of time when it comes to evaluating the amount of pain and suffering experienced. Some wrongful death victims are killed upon impact, which may reduce or negate the amount of pain and suffering damages for which they may be eligible. But victims that do not die immediately often incur a significant amount of physical and emotional pain and suffering during that period, as the physical pain is immense and the fear, confusion, and anxiety caused by their critical condition can be immense. All of these issues can be complex, and the right wrongful death attorney can explain them all to ensure that you fully understand everything.
Who can file a survival action?
In a survival action, the lawsuit is filed by the heir or personal representative of the victim’s estate. If the victim had created a will, then the person designated therein would be the representative. If no will had been created, then an heir such as the victim’s spouse, child, or parent could be the representative.
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If you have questions about what claims survive death, call Ellis Injury Law 24 hours a day to schedule a free consultation with a Los Angeles personal injury lawyer. We will not charge any fees unless you prevail.