Losing a loved one is hard enough. Deciding whether to take the extra step to file a lawsuit for your loved one’s death may be even harder.
In California, you have two options for filing a lawsuit after the death of a loved one: you can file either a wrongful death claim or a survival action. In fact, depending on your circumstances, you may be able to file both types of claims. But what is the difference between wrongful death and survival action? Although the two actions have some similarities, there are clear distinctions. Whichever the case, you may have the right to recover for your loved one’s untimely passing.
Wrongful Death vs Survival Action
Most people dealing with posthumous lawsuits have never filed one before. Understandably, you may be unaware of the differences between wrongful death vs survival action.
California allows for a decedent’s family members to bring a wrongful death action for the decedent’s death caused by the wrongful act or neglect of another. This allows for compensation to the decedent’s family for their losses. Examples of cases which may lead to a lawsuit for wrongful death include the following:
- A person passes away in a car accident as a result of another’s negligent driving.
- A patient dies on the operating table because of their medical provider’s error.
- A product defect causes a victim’s product to explode, killing them instantly.
A good way to distinguish between wrongful death and a survival action is to ask whether the victim’s death occurred during or immediately after the incident in question. The longer the survival period after the incident, the more likely the case is better suited as a survival action.
Usually, a cause of action is extinguished by the death of the plaintiff. However, in the state of California, a cause of action may “survive” a plaintiff’s death. This means that if the party who was—or could have been—the plaintiff dies before their opportunity to file suit against the defendant, their personal representative may file suit instead. The personal representative may also carry on lawsuits that the decedent started.
Often, a survival action addresses the same incident that led to the victim’s death. However, that is not always the case. If a person passes away before they can file or complete their claim, their estate’s personal representative may continue to pursue any damages owed for the benefit of the decedent’s estate.
Examples of cases which may lead to a survival action include the following:
- A patient has a cause of action for malpractice against their doctor. Prior to bringing an action for malpractice, the patient dies as a result of their injuries from their doctor’s improper treatment.
- A driver sues another driver that totaled their car for damage to their vehicle and lost wages. The driver later dies of a heart attack before their case can be concluded. The decedent’s estate continues the personal injury case and it becomes a survival action.
- A contractor improperly mixes chemicals, causing someone serious respiratory issues. The victim begins getting treated and files a lawsuit against the contractor for their injuries. A short while after, the victim dies from their respiratory injuries.
If you have any questions, an experienced attorney will explain the difference between a lawsuit for wrongful death vs a survival action to you.
Statute of Limitations
Before preparing for a wrongful death lawsuit or survival action, your attorney will make sure that the statute of limitations has not expired for your case. In California, the statute of limitations for filing a wrongful death lawsuit is two years after the decedent’s death. Conversely, the statute of limitations for filing a survival action is the later of two years after the date of the decedent’s injury causing their death or six months from death.
Failure to file your lawsuit by the deadline precludes recovery. The court rarely makes exceptions on these rules. Do not delay your case. Contact our team of wrongful death attorneys today so we can assist you before it is too late.
Recoverable Damages for Survival Actions
When comparing a survival action vs wrongful death, some of the most important distinctions deal with recoverable damages. The primary distinction to keep in mind is that damages in a survival action compensate the deceased person’s estate for the losses suffered by the deceased person. Damages in a wrongful death action, on the other hand, compensate the deceased person’s loved ones for their losses.
California law states that damages recoverable under survival actions are limited to:
- The decedent’s medical bills;
- Loss of income;
- Pain and suffering under limited circumstances;
- Punitive damages the decedent would have been entitled to recover; and
- Personal property damage and any other economic losses.
If the victim had grounds for a claim prior to their death, damages are likely recoverable under a survival action.
Recoverable Damages for Wrongful Death
Verdicts or settlements resulting from a wrongful death lawsuit may include recovery for:
- The decedent’s burial and funeral expenses;
- Pain and suffering or disfigurement of the decedent;
- Loss of companionship of the decedent; and
- Loss of the decedent’s future income.
Damages for a wrongful death lawsuit may not include recoverable damages under a survival action.
Another important distinction between survival actions and wrongful death claims is that a survival claim allows claimants to seek punitive damages.
Most damages are based on actual economic and non-economic losses. Punitive damages, however, serve to punish the defendant and deter bad behavior. When available, these damages are awarded above and beyond the damages needed to compensate the victim.
For a plaintiff to prove that they are entitled to punitive damages, they must show by clear and convincing evidence that the defendant committed “oppression, fraud, or malice.” Your attorney can help you determine whether your case might qualify for punitive damages.
We Can Help
Even if you are still unsure of which action is appropriate for your situation, our attorneys are here to help explain the details.
At The Larsen Firm, we have the experience you need to win a wrongful death lawsuit or a survival action. Our California attorneys have decades of experience individually fighting for clients who have lost a loved one. Our attorneys have won tens of millions of dollars for clients with wrongful death claims and survival actions. Not only are we passionate about helping you win, but we hope to build a lasting relationship with you. Your case does not end after receiving your verdict or settlement. Contact The Larsen Firm today to start your case.