No matter how it happens, losing a loved one is never easy. If your loss results from the negligence of another person, this is even more difficult. Grief, anger, confusion, and sadness are common, and you may wonder how you can seek justice for your lost loved one and your family. Nothing can bring your loved one back, but you can seek compensation for your loss. In this blog, we discuss the differences between wrongful death vs survival action claims, as well as how you can use them to recover damages.
At Reich & Binstock, our wrongful death lawyers are extremely skilled at representing surviving family members of deceased victims. Depending on the nature of your case, you may benefit more from filing a wrongful death claim or a survival action. To learn more about your legal options, please call our office at 713-622-7271 and schedule a free consultation with us. We will evaluate your case and give you sound legal advice on how to proceed.
What Is a Wrongful Death Lawsuit?
In the state of Texas, people can bring wrongful death lawsuits when someone is killed due to the recklessness, negligence, or intentional acts of other people. The deceased person could have been killed in a car accident, medical malpractice case, slip and fall accident, or other incident. As long as someone dies as a result of another’s negligence, this may be the basis of a wrongful death claim.
A wrongful death suit aims to benefit the beneficiaries of the deceased person, generally their surviving family members. However, a personal representative of the deceased person’s estate may also file a wrongful death claim on behalf of the family. The lawsuit seeks compensation for the losses incurred by the family as a result of their loved one’s death.
What Are the Elements of a Wrongful Death Lawsuit?
To have a valid wrongful death claim, one must be able to show the following elements.
- The defendant owed a duty of care to the victim, but they breached that duty.
- The victim died from that breach.
- Their death resulted from that breach.
- Surviving family members have suffered monetary losses from their death.
Additionally, one can generally file a wrongful death lawsuit if the victim would have been able to file a personal injury lawsuit had they survived. If each of the above elements are present, a surviving family member may file a wrongful death action. A personal representative may also file this action.
What Is a Survival Action?
Survival actions are unlike wrongful death claims and personal injury lawsuits. They are unique in that they don’t aim to benefit surviving family members. Instead, the administrator of the deceased’s estate brings a survival action to compensate for his or her death. If the deceased person would have had a claim if they survived, an administrator may bring a survival action.
If damages are recovered from survival actions, they are put directly into the estate of the deceased. Because of this, recoveries from survival actions may be subject to inheritance taxes.
What Are the Elements of a Survival Action?
Wrongful death and survival action claims both have specific requirements for valid cases. To have a valid survival action, the estate’s administrator must show the following elements.
- The plaintiff is the administrator of the deceased’s estate.
- The deceased person would have had a valid personal injury claim had they survived.
- A negligent or intentionally harmful act by the defendant caused the victim’s death.
If you have lost a loved one due to another’s negligence, you may have the basis for a wrongful death or survival action. We recommend speaking with a qualified personal injury attorney for more information about your case.
How Are Wrongful Death Claims and Survival Actions Different?
The main difference between wrongful death and survival actions is how the compensation pays out. In wrongful death cases, the compensation goes to the surviving spouse, children, or parents of the deceased. In a survival action, the compensation goes directly into the decedent’s estate.
After a family member’s death, surviving family members can initiate a wrongful death lawsuit to compensate for medical expenses, burial expenses, and more. This helps them to move forward without struggling financially. A survival action, however, arises when a victim is injured, survives initially, then succumbs to their injuries later. Compensation from survival claims center around the victim’s losses before their death rather than the family’s losses. This ensures that the liable parties do not escape all liability just because the victim did not die right away.
How Are Wrongful Death Claims and Survival Actions Similar?
Both survival actions and wrongful death cases are types of personal injury lawsuits filed after a victim has died. The victim must have died due to the negligence or intentionally harmful actions of another person. Both cases allow parties to seek compensation for losses incurred after a family member dies. Additionally, for someone to have a successful claim, they must be able to show that negligence was the cause of the victim’s injuries, and therefore their death.
Damages for Wrongful Death vs Survival Action
So, how do the awarded damages differ between survival action lawsuits and wrongful death claims? Damages in a wrongful death claim are awarded to surviving family members, as they have incurred monetary losses from their loved one’s death, such as emotional and economic support. Damages in a survival action are awarded to the decedent’s estate to compensate the damages they incurred before their death.
Specific damages that one can claim in these cases include the following.
- Medical expenses incurred before the victim’s death
- Pain and suffering
- Loss of financial support
- Burial and funeral expenses
- Emotional distress and mental anguish
- Loss of consortium
Have You Lost a Loved One Due to Someone Else’s Negligence?
If you have lost a loved one due to the negligence or intentionally harmful actions of another person, you may have the basis for a wrongful death or survival action. Regardless of whether the victim dies immediately or long after they are injured, those expenses should be compensated by the responsible party. After losing a loved one, we understand that you need time to grieve and heal. That’s why the qualified personal injury lawyers at Reich & Binstock are here to help you seek justice for your losses.
Contact the Wrongful Death Lawyers at Reich & Binstock Today
At Reich & Binstock, we take great pride in maintaining compassion while fighting aggressively for the compensation surviving family members deserve. If you are unsure of whether you have a wrongful death or survival action claim, our attorneys can shed some light on your case. To schedule a free, no-obligation consultation with us, please call our office at 713-622-7271 today.
