Can Heirs Bring a Survival Action?
I have heard that besides Wrongful Death, the heirs can bring a Survival Action. What does that mean?
A survival action can be brought by decedent’s successors if the decedent did not die immediately after the accident. While pain and suffering damages are not awardable, the successors can still recover for medical bills incurred as well as lost wages before death. In many cases, however, it is better NOT to claim damages for survival. For example, suppose there is a death and the medical bills are over $100,000 from the accident. The person at fault has $50,000 in insurance.
If Medi-Cal or another agency paid the medical bills, they will want to be reimbursed from the Survival case settlement. In cases like this, it may be better for the heirs NOT to file for survival damages since if they recover Medi-Cal will get most or all of the money. Wrongful Death damages belong to the heirs alone and Medi-Cal cannot get reimbursed from that action.
An experienced Sacramento Wrongful Death Attorney can guide families on the best way to proceed in these difficult cases.
A survival cause of action can be filed by the estate’s personal representative, or if none has been appointed, by the decedent’s successor-in-interest. A survival cause of action can only be brought if the decedent did not immediately die from his injuries. However, if the deceased lived for even a short time between the accident and his or her death, then a survival cause of action may be appropriate. Damages recoverable under the statute include “the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.” Essentially, the survival statute allows one to “step into the shoes” of the deceased and recover the damages the deceased person would have been entitled to had they lived, including medical expenses and lost wages, as well as penalties, punitive or exemplary damages.