When negligence results in a deadly accident, surviving family members deserve to be compensated for their devastating loss. Over 40,000 wrongful death lawsuits were filed between 2022 and 2023, each claim representing another grieving family left behind. Filing a wrongful death claim can help the decedent’s surviving heirs receive compensation for the damages they experienced following their loved one’s death. In some cases, families may also be entitled to pursue a survival action, which can increase the value of their case. As each case is different, it’s essential to work with a wrongful death firm that can help families explore all legal options when filing a claim.
Survival Actions vs. Wrongful Death Claims: What Families Need to Know
What is a Wrongful Death Claim?
A wrongful death claim is a civil lawsuit brought by the family members and dependents of a deceased person against the individual whose negligence caused their death. In California, these claims can be filed by the decedent’s spouse, children, or other dependents within the two-year statute of limitations, depending on the specifics of the case. The goal of a wrongful death claim is to compensate the decedent’s loved ones for damages they suffered following his or her death.
What is a Survival Action?
If the victim of a negligent accident survives for a period of time before their death, during which time they incur damages that would amount to a personal injury claim, this claim would “survive” to their estate following their death. The family brings a survival action to recover damages on behalf of their deceased loved one’s suffering as part of the overall wrongful death case.
Similar to a wrongful death action, a survival action is also filed by surviving family members against the person whose negligent actions caused the death. However, the damages this kind of action claims are for the personal injury, pain and suffering, and emotional trauma suffered by the dying person before the time of death, rather than the damages experienced by the family following the death.
What Kinds of Damages Can Be Claimed in a Survival Action?
Following the 2022 change to California Code of Civil Procedure (CCP) 377.34, survival actions now permit the recovery of both economic and non-economic damages in all actions filed between January 1, 2022, and January 1, 2025. It’s important to understand the difference between the two, so families know what they may claim:
- Economic: These damages cover financial losses incurred before death, such as medical expenses or lost wages.
- Non-economic: These include the intangible losses suffered between the accident and the time of death, such as pain, suffering, and disfigurement.
Non-economic damages are necessary to claim, but difficult to evaluate. The jury will need to understand that the decedent was alive for a period between the accident and the time of death and that they suffered these intangible damages. To claim non-economic damages in a survival action, your wrongful death attorney will need to collect evidence and build a strong case.
The Importance of Evidence in a Survival Action
When pursuing a survival action as part of a wrongful death case, damages depend entirely upon what can be proven. The jury will need to be shown that the dying person was alive for a period between the accident and the time of death, during which time they experienced great suffering. Evidence for a survival action can include:
- First responder testimony: Statements by paramedics and other emergency responders can play an important role in proving that the decedent was alive following the accident. If life-saving efforts like CPR were made, the jury would understand that the individual did not die immediately from their injuries.
- Medical documentation: If the decedent was brought to the hospital and treated by medical professionals, medical records will show the extent of their injuries and the duration of their life following the accident.
- Expert witness testimony: In a survival action, expert witnesses may include emergency room doctors who interacted with the decedent before death, or pathologists who can interpret evidence and explain its implications to the jury. For example, a pathologist could help a jury understand that the dying person could still have felt pain even if they were unconscious before death.
- Witness testimony: Anyone who witnessed the accident may be valuable to a survival action claim. If the dying person was heard making sounds of pain, breathing, or even calling out for a loved one, witness testimony is vital. Statements of this sort are extremely powerful in a survival action because they speak to the decedent’s physical and emotional state before death.
All this evidence can be impactful on a jury, but collecting evidence for a wrongful death case is extremely challenging. There is extensive research required, in addition to facing the difficult facts of a loved one’s painful death. Consulting a trusted wrongful death attorney will ensure that all avenues are pursued and allow your family some peace during this difficult time.
Hire the Right Wrongful Death Attorneys
When filing a wrongful death claim or survival action, understanding how to file, what damages to pursue, and how to prepare for trial is overwhelming, especially during a period of grief. The wrongful death attorneys at Rodriguez & Associates understand what our clients have been through and how best to support them through this difficult process. We offer decades of experience, a history of record-breaking verdicts, access to expert witnesses that can strengthen any case, and a commitment to telling each client’s story. Our president and founder, Daniel Rodriguez, is an instructor of the Gerry Spence storytelling method, and ensures all our attorneys are educated in this important process that allows a judge and jury to feel the impact of the decedent’s loss on their family and community.
If your family has lost a loved one to another’s negligence, trust the experienced wrongful death attorneys at Rodriguez & Associates to guide you on your path to justice. Contact us today to schedule a consultation.