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Wrongful Death vs. Survival Action

When a loved one passes away, there are two general types of claims that may be filed under the circumstances: a wrongful death or a survival action. Both types of claims can allow the surviving family members to obtain compensation for losses that can include burial expenses, lost wages of the deceased, and non-economic losses like the loss of the deceased’s companionship. 

In addition, damages from a survival action or wrongful death claim can often help to bring some form of closure when the at-fault party is held accountable. An Albany Wrongful Death Lawyer with Powers & Santola, LLP, can explain how these two types of claims work.

What is a Wrongful Death Claim?

Wrongful death cases allow a personal representative of the deceased to file a claim on his or her behalf, and to seek damages for the surviving family members. With a wrongful death claim, the personal representative is seeking to “recover damages for a wrongful act, neglect or default which caused the decedent’s death” by filing a claim against the liable party, according to New York wrongful death law.

What is a Survival Action?

In many wrongful death cases, the deceased did not immediately die as a result of his or her injuries. Indeed, in some cases, the deceased may have survived for days, weeks, or even months before succumbing to injuries. 

In some cases, the deceased may have been in a coma and on life support, or in other situations, the deceased may have undergone a number of complex surgeries in an attempt to heal from the injury, but the surgeries ultimately were not successful. In these types of cases—where there is a gap in time from the date of the incident that gave rise to the injury, such as a medical error or an accident—and the date of the deceased’s death, it may be possible to file a survival action.

Under New York law, the deceased’s personal representative can seek damages for the time period in which the deceased survived the injury, even though the deceased ultimately died as a result of the injury. The types of damages that may be possible for a survival action can include, for example, medical bills incurred by the deceased during this time, lost wages as a result of the deceased’s inability to work, and the deceased’s pain and suffering during this period of time.

Can a Survival Action Be Filed with a Wrongful Death Claim?

Survival actions are typically brought in conjunction with wrongful death claims. To be sure, in many wrongful death cases, the personal representative is able to file a survival action and a wrongful death lawsuit. 

However, a survival action is only possible if the deceased did survive for a period of time before succumbing to injuries that ultimately proved fatal. For instance, if a person died almost instantaneously in a fall from heights at a construction site, a survival action would not be appropriate, even if a wrongful death lawsuit is possible.

Contact a Wrongful Death Lawyer in New York

If you recently lost a loved one due to another party’s wrongful or negligent behavior, you should seek advice from an Albany Wrongful Death Lawyer with Powers & Santola, LLP, about moving forward with a wrongful death claim. Contact Powers & Santola, LLP for more information.

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