Difference Between Wrongful Death Claims and Survival Actions


Regardless of whether your family member died as a result of a motor vehicle or large commercial vehicle accident, swimming pool injury, or medical malpractice, the unexpected and untimely death of a loved one is even more difficult to bear with the knowledge that his or her death could have been prevented. If the deceased person was also the main financial supporter in the household, his or her death may have devastating financial consequences on top of the emotional hardship that surviving family members are already facing. The unplanned loss of a child can leave families struggling to cover funeral and burial expenses to put their loved one to rest.

If your family has experienced a loss that occurred due to another party’s negligent or intentionally reckless behavior, you may be considering taking legal action against the person or persons responsible. There are two types of legal recourse following the death of a family member caused by negligence or recklessness. Wrongful death or survival action lawsuits are both types of personal injury lawsuits that attempt to compensate victims and their survivors for economic and non-economic damages they’ve suffered due to an accident. Either of these options can be filed during the probate proceedings for the deceased individual’s estate.

The main differences between wrongful death suits and survival action suits lie in how the compensation for expenses related to the accident are paid out, the types of damages awarded, and the statutes of limitations for filing a claim. An experienced Omaha personal injury lawyer can listen to your story, explain all of the options available, and help you determine the best course of action for you and your family’s situation.

Approaching wrongful death claims with both determination and compassion, the personal injury lawyers at Berry Law have a record of success in litigating cases involving fatalities caused by negligence in Nebraska. Let them help you navigate the claims process so that you can focus on your family’s needs during this emotionally difficult time.

Wrongful Death Claims

Wrongful death lawsuits are filed on behalf of a deceased person’s estate in order to compensate that individual’s surviving family members. Claims of this nature are typically filed when a victim dies immediately following an act of negligence by another party that results in a fatal injury. This could occur as a result of a motor vehicle or motorcycle accident, slip and fall, or due to medical malpractice.

Compensation in wrongful death claims pays the deceased’s surviving family members, such as his or her spouse and children. Damages may include compensation for economic support and future lost wages, especially if the victim played an integral part in securing the family’s income and financial security. Family members may also sue for pain, suffering, grief, and loss of consortium, a legal term used to describe the impact that an accident fatality has on relationships, companionship, and emotional support lost due to an injury or death.

The settlement that a family receives from a wrongful death suit can be vital to their economic survival if they relied heavily on the deceased victim to provide emotional and economic support to the family. This is especially true in the case of minor children who, depending on their ages at the time of the victim’s death, may have many more years ahead before they can support themselves and have also now experienced the emotional turmoil of losing a parent. Wrongful death claim damages are paid to the victim’s next of kin to help them move forward financially with their lives following a tragedy.

Survival Action Claims

A survival action is also a type of personal injury lawsuit that is filed on behalf of the victim and involves damages that the deceased individual would presumably have been entitled to had he or she survived their injuries. This type of legal action is usually filed in situations where a victim is injured by another party’s negligence, but survives the initial event only to succumb to their injuries later. It’s also used in medical malpractice lawsuits involving a gross medical oversight, surgical mistakes, or misdiagnosis that later leads to a patient’s untimely death. The greater the period of time between the initial injury and death, the stronger the case that the deceased individual’s family has for a survivor action lawsuit.

Unlike wrongful death lawsuits, which center around what the survivors have lost as a result of their loved one’s death, survivor action claims focus on the damages suffered by the victim between the event that caused his or her injuries and the time of that individual’s death. Victims may survive for a period following an accident or injury, during which time they may endure considerable pain, suffering, and emotional anguish as a result of their injuries and incur significant medical expenses as well.

Survival actions cover damages suffered by the deceased person, such as his or her level of pain and suffering preceding their death, and any medical bills acquired during that time frame. Survival claim suits prevent the negligent party in an accident or malpractice case from escaping liability simply due to the fact that the injuries from an event they caused did not immediately result in a fatality.

Damages in survival actions are paid directly to the deceased individual’s estate, which is then paid out to his or her beneficiaries through an executor when the estate is settled.

Who Can File for Compensation in a Wrongful Death Suit or Survival Action?

Only eligible parties are able to seek damages in a wrongful death suit or survival action. These usually involve individuals who either relied on the monetary support of the victim when he or she was living or those parties who would be responsible for paying the cost of medical bills and funeral and burial expenses of a deceased relative.

The purpose of compensation is generally viewed as reparations for lost financial support, loss of services, loss of future earnings, loss of spousal or parental companionship, mental anguish, pain, and suffering. For this reason, the courts generally recognize the following as interested parties able to file suit on behalf of a deceased loved one:

  • Spouse of the deceased person
  • Biological or adopted children over age 25
  • Biological or adoptive parents
  • Siblings of the deceased if he or she provided for their full or partial support while they were living

There may be other scenarios under which a person could qualify for compensation in a wrongful death claim or survival action. It’s best to consult an attorney to better understand who qualifies for financial reparations following a fatal accident or injury.

What Role Does a Personal Injury Lawyer Play in Wrongful Death or Survival Action Claims?

Legal actions involving a deceased person, including continuing a lawsuit that was filed prior to his or her death, can be complex in nature. In the case of either wrongful death or survival actions, the party who files suit must be able to demonstrate that the negligence of another person led to the injuries suffered by the victim. In other words, the defendant’s actions contributed to the injuries that ultimately led to the victim’s untimely death.

Hiring a personal injury attorney can assist already-grieving family members in obtaining and keeping careful records of emergency, medical, or rehabilitative care that the now-deceased person received before his or her death. This information is critical in demonstrating liability to the court. An attorney can also contact and interview witnesses to the accident. Eye witness accounts, along with accident scene reconstruction reports and photographs that document the scene of an accident, can serve as powerful evidence that can be presented to a jury if your case goes to trial.

Most states have a statute of limitations for filing wrongful death suits and survival actions. Under Nebraska Revised Statute 30-810, the statute of limitations to file a wrongful death claim in Nebraska is two years from the date of the deceased person’s death. The statute of limitations is extended in cases where a survivor action lawsuit began before a victim succumbed to his or her injuries. The claim can then continue to be pursued by his or her survivors, with the time to act on a survivor action claim in Nebraska governed by the four-year residual statute of limitations rather than the two year statute of limitations that applies to a wrongful death claim.

A seasoned personal injury attorney can advise families on what steps they should be taking and the timeline they will need to follow to pursue a wrongful death or survival action in the name of their deceased relative. Failure to meet the statute of limitations for either type of claim could make it impossible to go back and collect damages at a later date in the future.

When your world has been shattered due to an accident that resulted in the fatality of a loved one, rely on the professional guidance of the personal injury team at Berry Law to hold the negligent party or parties accountable for their actions. Call today to learn more.

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