Personal Injury Attorney

When a person loses their life to negligence, such as a car accident, their surviving family members may be able to file a wrongful death claim. In addition to this, they might have the ability to file a survival action claim. As a wrongful death lawyer would explain to you, these types of claim are not the same. Before your decide to take legal action, you should understand their basic differences. 

The law governs both survival action claims and wrongful death claims. Prior to laws being established, there was no real way to recover damages when a person lost their life to another person’s actions — or lack of. 

There are important differences between wrongful death laws and survival actions laws; they are as follows:

• Both survival action and wrongful death laws provide for the ability to recover from different types of damages. 
• The descendants have the right to file a wrongful death claim. 

In short, a wrongful death claim gives the descendants the right to recover damages with the legal assistance of a wrongful death lawyer. These damages might include funeral and burial costs, any medical bills prior to the death and related to the accident, loss of income, and so forth. A survival action claim can also be filed by descendants, but the damages recovered generally include those that could have been recovered by the deceased person had they lived. Often a wrongful death lawyer, like a wrongful death lawyer in Woodland Hills, CA, will recommend filing both types of claims at the same time. 

Who Has the Right to File a Wrongful Death Claim

Although every state has their own rules for filing a wrongful death claim, many are similar. In general, the surviving family members will not be able to file their own claim, but rather, they should file one collectively. The closest surviving member such as a spouse, parent, or child will have the first right to file. If there are no close surviving family members, a grandparent, aunt, uncle, or cousin may file a claim. A representative will also need to be elected. Usually, this person will also be the wrongful death lawyer; however, this is not necessary and can be chosen by the court of family members. 

Damages for a Wrongful Death Claim

Wrongful death claims are meant to recover monetary compensation related to financial loss of support for the surviving family members. Examples may include:

• Funeral and burial costs
• Medical treatment (prior to death)
• Loss of support for children up until they turn 18
• Loss of support for a spouse until the age of 65 
• Loss of consortium
• Loss of services
• Loss of nurturing and guidance

Punitive damages may also be available if the defendant acted with malicious intent or was grossly negligent. Some states have capped punitive damages; thus, you might only recover a certain amount of money. A wrongful death lawyer can explain these to you during your case review. 

Damages for a Survival Claim

The surviving family members may be able to seek damages for:

• The deceased’s’ pain and suffering prior to his or her death
• Loss of earnings
• Loss of income

If you would like to know whether or not you have the right to pursue monetary compensation after the loss of a loved one, call a wrongful death lawyer now. 

Thanks to Barry P. Goldberg Law for their insight into the differences between a survival action claim and a wrongful death claim.