Losing a loved one caused by someone else’s negligence can be devastating. The situation can be even more disorienting if you were also financially dependent on your loved ones. In addition to losing the love, affection, and companionship of a special person in your life, you must also try to navigate your way out of a tough financial situation. This can feel overwhelming, especially during your time of grief.
Surviving dependents may be able to pursue compensation for the loss of their loved one through a civil claim of wrongful death and/or a survival action. There are important differences between these two types of legal claims. The personal injury team at Edwards & Patterson Law provides a brief outline of wrongful death and survival action claims below. You can also contact us to learn whether you may be eligible to file such a claim.
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What Is a Survival Action?
A survival action derives from an individual’s right to file a personal injury claim. If the victim of a personal injury dies while their claim is pending or during the timeline for which they were eligible to file a personal injury claim, this right “survives” the victim’s death.
The victim does not have to die because of the personal injury that harmed them for their estate to file a survival action. For example, if a person was injured in a car wreck and suffered an unrelated heart attack two months later, a survival action could still be filed against the party who caused the car wreck.
What Is a Wrongful Death?
Oklahoma law defines wrongful death as one that occurs because of the “wrongful act or omission” of another. While any death may seem untimely, it is only considered “wrongful” if someone was negligent or did something wrong to cause the death.
What is the Difference Between a Wrongful Death and a Survival Action?
Oklahoma treats wrongful death claims and survival actions differently. They are two separate claims that may involve different damages, claimants, and parties who benefit from the actions.
In a wrongful death claim, the victim’s spouse and next of kin are compensated for specific losses outlined by Oklahoma’s wrongful death statute.
Survival actions are brought by and benefit the decedent’s estate.
Do Damages Differ Between Wrongful Death and Survival Actions?
Yes. The damages in a survival action are similar to those that a victim could have received had they survived, such as:
- Medical expenses incurred to treat the injuries the victim suffered
- Lost wages from the date of the injury to the date of death
- Loss or impairment of earning capacity
- Conscious pain and suffering the victim endured from the date of the accident until they died
- Permanency of the injury
As Oklahoma courts have explained, damages in survival actions begin with the wrong that injured the victim and end with their death.
The decedent’s estate is the beneficiary of a survival action. Any funds recovered from the accident are distributed to the estate and then to the beneficiaries or heirs per their will or intestacy laws, respectively, during the probate process.
A wrongful death claim compensates the victim’s loved ones for the losses they personally endure. This includes economic losses such as:
- Lost income their loved one would have earned if they lived
- Medical expenses for the decedent’s last injury or illness
- Funeral expenses and burial costs
Damages also include non-economic losses loved ones suffer, such as:
- Mental pain
- Anguish
- Grief
- Loss of consortium
In rare circumstances when the defendant’s actions are particularly egregious, punitive damages can also be awarded.
Oklahoma’s wrongful death statute outlines which damages can be recovered, in what proportion, and by whom.
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Who Can Bring a Claim for Wrongful Death or a Survival Action?
The personal representative of the decedent’s estate brings a wrongful death claim or survival action. The court during the probate case appoints a personal representative. These claims must usually be brought within two years of the victim’s death. If this deadline passes without the personal representative filing a lawsuit, the beneficiaries and estate can be barred from making a claim. This time period is known as the statute of limitations.
What are Common Causes of Survival Actions and Wrongful Death Claims?
Survival actions and wrongful death claims are both based on events that would have given the victim the right to file a personal injury claim against the defendant if they survived. For example, deaths caused by any of the following could potentially provide grounds for wrongful death claims:
- Car accidents – Car accidents are a leading cause of death in Oklahoma. Car accidents caused by distracted driving, drunk driving, speeding, or defective car parts could provide a basis for a wrongful death claim or survival action.
- Motorcycle accidents – Because motorcycles have no external protection, even low-speed collisions can result in death. Loved ones may be able to bring a claim against the careless driver who crashed into their loved one.
- Medical malpractice – When doctors and other healthcare providers make mistakes, the result can be fatal. The patient’s surviving family members or estate can try to hold the careless provider accountable for their unacceptable care.
- Defective products – Defective products, including vehicles, car parts, medications, or medical devices can sometimes cause the death of consumers who use them.
- Acts of violence – Wrongful death can also occur because of intentional acts, such as murder, assault, battery, or illegal use of firearms.
What Sort of Claims Do Not Survive?
There are some types of personal injury claims that do not survive the victim’s death, including actions for:
- Libel
- Slander
- Malicious prosecution
How Does a Survival Action Occur?
The personal representative of the decedent’s estate files a survival action. If a personal representative has not yet been appointed, this may first need to be completed as part of a probate case. Survival actions are administered through the probate process.
Contact an Oklahoma Wrongful Death Lawyer Today
Losing a loved one is one of the hardest things you could go through. When the death is caused by another person’s negligence or wrongful acts, it can be even more difficult. While no amount of money can ever bring back your loved one, a survival action or wrongful death claim may be able to provide you and your family with justice and help ease some of the financial burdens you are experiencing.
The law firm of Edwards & Patterson Law is here to assist you in your survival action or wrongful death claim. Contact us to learn whether a wrongful death suit or survival action may be an option after the tragic death of your loved one.
Last updated Wednesday, December 4th, 2024
