Survival actions are separate and distinct from wrongful death claims. But, thanks to confusing legal terms, it's easy to confuse the two. Although wrongful death cases are filed on behalf of grieving survivors, "survival" actions involve claims that the deceased could have brought had he survived.
Who Can Sue?
Since the deceased cannot file the lawsuit, the personal representative of the deceased's estate must do it instead. Thus, the Estate is the plaintiff in a survival action, seeking all the damages to which the deceased would have been entitled had he or she survived the accident.
Damages in a Survival Action
In a survival action, the Estate's attorney will seek compensation for both economic and non-economic damages suffered by the deceased as a result of the accident.
Economic losses may include the fair and reasonable medical expenses the deceased incurred, the loss of earnings from the time of injury to the time of death, and funeral expenses up to $5,000.
Non-economic losses include any conscious pain, suffering or mental anguish that the deceased experienced as a result of the injury until death, as well as any pre-impact fright. Thus, if the deceased died instantly or never regained consciousness following the accident, the estate may have a tough time recovering for "conscious" pain and suffering. Yet, even in these cases, if the estate can show that the accident occurred in such a way that the deceased likely experienced mental anguish prior to impact, jurors may be permitted to consider such pre-impact fright in awarding non-economic damages.