Can I Take Survival Action?

July 22, 2019

When an accident results in the wrongful death of someone, there are two types of claims that can be made on their behalf. The decedent of a wrongful death victim can bring a wrongful death lawsuit and maybe also what is called a survival action. Both types of claims are strictly governed by state laws. Often, when both types of claims are suitable, they will be addressed within the same lawsuit. 

Wrongful Death vs. Survival Action

A wrongful death claim is centered around the family. Damages include the pain and suffering endured by the family, the current and future income lost because of their loved one’s death, funeral expenses, and more. Survival action, however, is centered around the suffering of the deceased before their death. In some cases, the deceased does not pass away immediately. Therefore, the family can recover pain and suffering, fear of impending death, lost earnings, and medical expenses on behalf of the deceased. These earnings are similar to what the person could have recovered in a personal injury lawsuit if he or she had survived. 

Who Can Bring Survival Action?

Much like a wrongful death claim, the people eligible to bring a survival action is dependent on state laws. A personal representative, which is usually the deceased’s spouse, child, or parent will file the lawsuit and will decide to bring a wrongful death claim, survival action, or both. In the case that the deceased’s surviving family members do not agree on a representative and there is no will, a personal representative can be appointed by the state. 

If your loved one has passed away due to negligence of another party, we encourage you to contact one of our attorneys today. We will discuss your case with you and what claim options you have. Contact The Cochran Firm New York today for your free case evaluation at (212) 553-9215.

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