The law of survival actions

Damages suffered by a deceased individual prior to death are a category of compensation referred to as a survival action.

Most survival actions are launched in partnership with a wrongful death lawsuit. This is when someone dies suddenly due to the negligence of another. It may be due to a work accident, a dangerous/defective product, medical malpractice, car crash, an animal attack or medication errors. “As a net result of this unexpected death, those left behind face huge medical bills, burial costs, mental anguish and an overwhelming sense of loss; this in addition to trying to cope with their everyday lives. A wrongful death action lets the family get compensation for their loss,” said Robert Webb, an Atlanta personal injury lawyer with Webb & D’Orazio in Georgia.

A wrongful death claim may only be brought by the deceased’s immediate family. That would mean siblings, children, parents or spouse. In most instances, it is the spouse or a personal representative of the estate who launches the lawsuit. If the only surviving family member is a minor, the courts appoint a Guardian ad Litem to protect his or her interests.

“If a family member has been killed due someone else’s negligence, don’t wait to file a lawsuit. Time is critical in cases like this. Each state tends to have a different timeline for actions like this For instance, South Carolina’s timeline is three years. In Georgia, the statute of limitations for a wrongful death lawsuit is two years, so don’t wait,” Webb said. If the statute of limitations runs out, the plaintiff can’t pursue their claim.

Damages in cases like this generally fall into two rather wide categories, non-economic loss and economic loss. “In the non-economic loss category, you’d find things like loss of consortium, mental anguish and loss of companionship and society. In the economic loss category are things such as funeral and burial expenses, loss of support, loss of inheritance and loss of services provided to the home and family,” Webb said.

As for survival actions, this deals with damages suffered by the deceased prior to death. The survival action and wrongful death actions are usually filed together. These damages may include pre-death pain and suffering, pre-death mental anguish, loss of enjoyment prior to death and pre-death economic loss. Pre-death economic loss usually refers to items such as medical bills and lost wages. “These actions may also include a request for punitive damages against the person who caused the accident. If the act the negligent person committed was so egregious as to be reprehensible, the court may award punitive damages to punish the defendant,” Webb said.

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