What is a Wrongful Death Claim? | Learning About Lawsuits

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Wrongful death? Survival action? What’s the difference?

Whether it stems from medical malpractice or an auto accident, negligence can unfortunately result in death. In most personal injury lawsuits, the plaintiff filing the lawsuit is the one that suffered some sort of physical injury. They are suing because they desire compensation for the injuries that they sustained and the costs associated with those injuries.

When the plaintiff dies, although they have sustained harm from another’s negligence, they are obviously not around to sue that party. A wrongful death claim allows those who were affected by that person’s death to sue the person responsible. However, there are two separate types of claims involving deaths: Wrongful Death Claim and Survival Action.

Wrongful Death Claim

The first of those claims is your garden variety wrongful death claim. In this type of claim, those closest to the deceased are suing for the loss of his or her presence. In order to bring a wrongful death claim, you have to be a “party in interest.” Each state has a statutory scheme that lays out exactly who a “party in interest’ is. Typically, they include the immediate family members of the victim. For example, Maryland has a two-tiered system for figuring out who is entitled to bring a wrongful death action: primary and secondary beneficiaries. Primary beneficiaries are parents, children, and spouses of the deceased person. While secondary beneficiaries are those who are related by blood or marriage should no primary beneficiaries exist. Of course, secondary beneficiaries have to be dependent on the deceased in order to bring a claim.

In a wrongful death claim, the damages that a party can recover flow directly from their loved one’s loss. For example, the family of the deceased would be entitled to the lost wages of the deceased. They would also be entitled to any future lost wages that the deceased would make. The goal of the civil justice system is to make plaintiffs “whole again,” and I think a wrongful death claim is an excellent illustration of how that end is almost accomplished. When a loved one dies, the family loses their income, possible pensions, inheritance, and the value of goods and services that they supply. Wrongful death damages attempt to quantify these numbers and pass them along to the family. However, in cases involving the death of a loved one, you can never truly be made completely whole, considering that you have to deal with the tragic loss of a loved one. Wrongful death claims do allow recovery of non-economic damages such as pain and suffering and loss of companionship. Of course, these will never compensate someone for the loss of a family member.

And unfortunately, many states have placed caps on the amount of damages that a plaintiff can receive in a wrongful death action. This usually depends on the number of beneficiaries who bring suit. It is also vital to keep the statute of limitations in mind as well. For example, in Maryland, the decedent’s estate typically has three years from the death of the deceased to file a wrongful death action.

Survival Action

Survival actions are slightly different, but still try to achieve the same goal: requiring the defendant to pay for the costs associated with the damage that they caused. While wrongful death claims are brought by the plaintiffs suing for the loss of their loved ones, survival actions are brought on behalf of the deceased. Think of these as “substitution claims.” Survival actions involve cases where the deceased suffered injuries as a result of another’s negligence but did not pass away immediately. After they do pass away, the deceased’s estate can “substitute” themselves as the plaintiff on behalf of deceased. Here, they are not suing for their loved one’s loss. Rather, they are suing on behalf of the deceased for the deceased’s injuries. Along with economic damages such as lost wages and medical bills, damages for pain and suffering are also recoverable.

In cases where the death was not immediate, most families bring both types of claims. This makes sense. It preserves the right of the victim to sue while allowing the loved ones to seek justice for their loss. While most legal doctrines originate from the common law that dates back many centuries, wrongful death claims and survival actions are a fairly new thing. They were created by statute fairly recently, meaning that the legislature maintains control over how they may be sought and the types of damages that can be recovered.

 

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