As the name suggests, a wrongful death case is when someone is killed due to reckless or careless behavior by another person. However, sometimes, before the victim passes away, they live for seconds, hours, or months. In such cases, not only may there be a wrongful death action on behalf of family members, but a survival action on behalf of the deceased’s estate.
A wrongful death claim is a lawsuit brought on behalf of certain family members who lost a loved one. Sometimes the victim might pass away immediately. However, sometimes, the victim may live for a while, and in such a case, a survival action may be appropriate. Even if the victim survived only for moments, if, during that time, they suffered due to their injuries, a survival action is something to consider.
There are key differences between a wrongful death action and a survival action.
The Type of Damages
There are some unique evidentiary issues that arise in survival actions. The first question is whether the person survived, and if so, for how long. It can be difficult to know if someone passed away immediately or if they survived for seconds or minutes. The next question focuses on how much the person suffered if they survived. These are gruesome questions to ask about someone we love, but they are necessary to access the potential for a lawsuit and what its value might be.
If a person survives long enough for help to arrive, the people who saw the victim can testify about what they saw, whether the victim was alert, whether they seemed to be in pain, and so on. If the person gets to the hospital, medical records can help establish whether they suffered and how much. In addition, expert witnesses can testify about their knowledge about the pain and suffering one tends to experience in certain types of car crashes with certain types of injuries.
Losing a loved one in a car crash is horrible. Having to stop and think about whether your loved one suffered before they died is inconceivable. And yet, the only way our legal system can compensate us is through a wrongful death or survival action. If you lost a loved one and are wondering about your options, if you need help determining if a wrongful death or survival action would be appropriate in your case, please reach out to us. We will listen to what happened and seek justice on your family’s behalf.