The Differences Between Wrongful Death and Survival Action Cases
If you are considering a wrongful death action, you may have heard about a survival action, and thus have questions about the differences between the two legal situations. We at McNeely Stephenson are here to help you understand your options.
Both wrongful death actions and survival actions are governed by state law. In Indiana, you are allowed to pursue both wrongful death actions and survival actions. Before state laws existed, any personal injury claim died when the deceased passed on. There was virtually no right to pursue personal injury claims after death back then. The first general wrongful death statute in Indiana was enacted in 1852.
What is a Wrongful Death Action?
Wrongful death statutes allow the deceased’s estate to be awarded damages that will go to those who suffered financially from the death of the deceased—in other words, the beneficiaries. Wrongful death cases must contain the following elements:
- Someone must have died.
- The death must have been caused by another’s negligence or deliberate intent to harm. Examples of possible situations causing death that may involve negligence or deliberate harm are medical malpractice, criminal behavior, occupational exposure to harmful substances, and vehicular accidents.
- Family members must be suffering financial injury due to the death. They can sue for economic damages such as medical expenses, funeral costs, lost wages such as a pension or other benefits, and the costs of bringing the suit.
In Indiana, technically, the personal representative of the deceased’s estate files the wrongful death suit. Then the family members become the estate’s beneficiaries and collect with the court.
What is a Survival Action?
No survival action case is possible without a wrongful death action. The survival action laws permit the deceased’s estate to be awarded the damages directly due to the death that extend from the time of injury to the time of death. What this translates into are financial damages such as the lost wages of the deceased for that limited time period, and the pain and suffering damages of the deceased (not of those left behind).
A note on lost wages: If the deceased dies immediately, the estate would not be entitled to lost wages, but would be entitled to damages for the deceased’s pain and suffering. If a period of time passed between injury and death, the estate would be entitled to lost wages for that time span as well as damages for the deceased’s pain and suffering.
Summarizing the Differences
The important takeaways of the dissimilarities between a wrongful death action and a survival action are:
- It is the wrongful death laws that enable the deceased’s estate to bring a wrongful death suit.
- No survival actions are possible without a successful wrongful death action.
- The laws for wrongful death actions and survival actions enable two distinct types of damages to be awarded to the estate of the deceased. Survival actions apply specifically to the deceased’s loss of income and pain and suffering.
Call us to set up a free consultation and find out if you have a case.
DO YOU HAVE A CASE?
When something goes wrong we are left to wonder
Wrongful death claims can be costly to pursue, and many law firms are not in a position to effectively reach a resolution in these cases. You can be assured that our lawyers, and our financial resources, are willing to go the distance on behalf of you and your family. Our investigative team at McNeely Stephenson goes to work immediately to uncover the ‘who’, ‘what’, ‘when’, ‘where’, ‘why’ and ‘how’. We are committed to bringing together the most qualified experts available (irrespective of cost) to uncover what happened. Your experts will come from around the world if necessary. Wrongful death lawsuits can be complex, and the proficiency of your experts is crucial in both the investigation and litigation phases of your claim.
You can be assured that our attorneys, and our financial resources, are willing to go the distance on behalf of your family and in the memory of your loved one. We offer free consultations and would like to discuss how we can be of service to you. Contact Mike today by calling 1-317-825-5200, or use our online contact form.