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When a person dies because of someone else’s mistake (a.k.a. wrongful death), their surviving family members often feel depressed, angry, and powerless. However, family members have the power to take action against the person or people who made the mistake. That action most often takes the form of a wrongful death lawsuit. When a person is injured because of someone else’s mistake, he or she can sue the wrongdoer on a theory of negligence.
There are two types of claims available to family members of people who die because of someone else’s mistake. The claims are called wrongful death and survival claims.
Wrongful Death Claim
Different jurisdictions have different rules, but, in general, a wrongful death claim can be brought by a surviving spouse, children, and parents of a deceased person. A wrongful death claim compensates family members for the losses they experienced because of the death of their loved one. It does not matter whether the “wrongful” act was done on purpose or by accident, as long as it is the kind of act that would have allowed the deceased person to sue for his or her personal injuries if the person had lived. The wrongful death claim belongs to the family members.
If a wrongful death claim is successful, the family members may be able to recover monetary damages. The amount and type of damages vary but may include things like loss of companionship, grief, and loss of financial support. The funds are distributed in accordance with the deceased person’s will. If the deceased person died without a will, the funds are distributed according to the applicable state law.
If the victim of the wrongdoing had survived, he or she would have had a claim for personal injuries. The victim’s claim for personal injuries is not extinguished by his or her death. Instead, the claim survives in favor of the estate, heirs, and legal representatives of the deceased. Survival actions usually accompany wrongful death claims.
A wrongful death claim compensates the family of the deceased for the injuries the family has suffered. On the other hand, a survival action compensates representatives of the victim for the suffering of the victim him or herself. When a person dies because of someone else’s mistake, the claim that he or she would have had is called a survival claim because the claim survives the death of the claimant. The thinking is that the wrongdoer would have been liable to the injured person. If he or she had survived, the injured person would have had a negligence claim against the wrongdoer. After his or her death, the claim can be brought on his or her behalf by surviving family members.
Usually, a spouse, parent, or child is named the personal representative for the estate of the deceased person. The representative then sues on behalf of the deceased person. If the suit is successful, the representative of the deceased person will be entitled to monetary damages to compensate him or her for the defendant’s wrongful act. The amount to which he or she is entitled depends on the circumstances of the person’s death and the extent of the wrongdoing. Those damages often include items like past medical bills, pain, suffering, and lost wages.
Remember, wrongful death claims and survival claims vary from state to state, so make sure to contact a lawyer to fully understand your rights.