If your family member's death can be directly attributed to the negligence of someone else, you may have a good wrongful death lawsuit. But what about if your loved one is injured through the negligence of someone else, but their death can't be directly attributed to that negligence? In that case you are missing one of the basic elements of a wrongful death suit. However, you may have the basis of a survival action.
What Is a Survival Action?
A survival action is a suit that is brought on behalf the estate of the person who died, unlike a wrongful death suit, which is brought by a surviving family member. The settlement money is paid into the estate of the person, and then is disbursed according to the dictates of their will. The surviving members of the family do not get to claim any money for things like pain and suffering, loss of future income, or loss of consortium. However, the lawsuit can seek reimbursement for the person's pain and suffering until their death.
What Are the Elements of a Survival Action?
The most basic element of one of these actions is that the person's death was because of the original injury, but not directly caused by it. This can be very confusing. An example of this would be someone who had significant injuries that caused them to be paralyzed. Because of their paralysis, they developed a blood clot that killed them. The injuries were directly attributable to the original negligent incident, but the death was not. The death was because of a blood clot that formed due to the original injury. So, death was because of the negligent action, but not caused by it.
Do You Have to Choose Between Wrongful Death and Survival Action Suits?
The basic answer to this is that it depends. It depends on the laws of your state. Some states will allow you file both at the same time. There is a good reason to do this. That's because your lawyer may think that they have a strong enough case to prove wrongful death, but want to make sure that there is a backup plan. Survival action suits may be easier to prove because they don't have to prove the accident directly led to death.
A survival action can help you deal with the loss of a family member. It can help make sure that medical costs are covered, as well as help give you money to live on. A personal injury lawyer such as Barton Smith & Barton LLP can help you decide what kind of case you have, and help you file it.
