Medical Malpractice and Personal Injury Law Blog

Understanding the Difference Between a Wrongful Death Claim & a Survival Claim in Pennsylvania

Posted by Charles Gilman | Feb 15, 2018 | 0 Comments

It is never easy when coping with the death of a loved one. It is particularly difficult if the death was caused by negligent, careless, or reckless actions of another party. In these instances, the survivors of the deceased may pursue a civil claim of wrongful death or a survival action to obtain financial compensation. 

These are completely separate processes from any criminal actions which could arise such as murder, manslaughter etc. A claim of wrongful death may be brought regardless of whether any criminal actions have arisen. Common examples of causes of action may include medical malpractice, auto accidents, work accidents and more.

Background

Common law actions of personal injury did not survive death, so no right for recovery by survivors of the deceased existed. Pennsylvania lawmakers implemented a Wrongful Death Act in 1851, and since there have been statutory provisions added. All states have some version of wrongful death or survival actions that have some varying procedural differences.

Who May Bring a Claim?

The right to bring a claim for wrongful death exists for the spouse, children, or parents of the deceased individual. The party does not need to be a resident of Pennsylvania. If there is no eligible family member to bring a claim, then a personal representative or estate administrator may bring a survival action for recovery six months after the death. 

If a claim is pending, a party who is entitled to bring a wrongful death claim may essentially challenge it by asking the court to remove the current plaintiff and be substituted. A claim should include the names and contact information for all those entitled to recover on their behalf. The court will attempt to formally notify those parties of the matter.

Differentiating Wrongful Death Claim from Survival Action

Pennsylvania courts recognize wrongful death actions as “separate and distinct” from survival actions, although they may be brought at the same time and essentially merged. The damages in both actions are collective and may not lead to duplicating damages. Wrongful death claims are brought by the spouse, child, or parent, while a survival action is basically brought on behalf of the deceased's estate. 

A survival action seeks to recover damages that the deceased would have been entitled to if they had not died. A key aspect of damages in survival actions are conscious pain and suffering, which is the experience the deceased endured from the time of the accident and when death occurred. This period may be minutes, weeks, months etc. Wrongful death damages are not subject to estate taxes and creditor claims, unlike those in survival actions.

Damages: Wrongful Death

  • Expenses for medical, funeral, burial and administration of the estate
  • Decedent's (current and future) contribution and support that would have existed for housing, food, healthcare, education etc.
  • Damages for losses of society, comfort, and guidance

Damages: Survival Action

  • The current and future losses of earnings minus personal expenses and estimated family contributions
  • Decedent's pain, suffering, and loss of pleasure

About the Author

Charles Gilman

As managing partner and co-founder of Gilman & Bedigian, it is my mission to help our clients recover and get their lives back on track. I strongly believe that every person who is injured by a wrongful act deserves compensation, and I will do my utmost to bring recompense to those who need and deserve it.

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