A person files a personal injury claim when she suffers injuries in an accident that someone else caused. However, if the person succumbs to her injuries before the claim settles or the lawsuit goes to trial, New York law allows family members to continue to claim damages.
Gacovino, Lake & Associates can help you change a personal injury claim to a wrongful death case. However, the continuance of the personal injury action will be called a survival action, and surviving family will file a wrongful death action to recover compensation for their damages.
If you’re pursuing such legal matters, make sure you have help from an attorney at Gacovino, Lake & Associates in New York. Call us now at 800-550-0000.
What happens to a personal injury claim if a person succumbs to the injuries?
When a person has suffered catastrophic injuries, there is a chance that the person will succumb to the injuries before the claim is resolved. In such cases, the personal injury claim is no longer called a personal injury claim. In this case, the case will change from a personal injury claim to wrongful death and as mentioned above, the case seeking compensation for the victim’s damages will become a survival action.
The survival action will aim to recover damages that the decedent suffered prior to death. So if one suffered medical bills and lost wages after the accident, the survival action can seek compensation for these damages. Damages in a survival action claim are recovered for the estate, and then distributed according to a will or New York law.
Elements of a Survival Action
Like a personal injury claim, the survival action must establish several elements. This includes a duty of care owed by the defendant to the plaintiff, such as that owed by all drivers to all other drivers. It also includes proving the following.
- The defendant was negligent
- The negligence led to the person’s death
- The decedent suffered damages
The legal representative of the decedent’s estate brings the survival action. This may be a family member or other party. New York allows the representative to bring or continue an action. So even if no personal injury claim existed prior to death, a personal representative may still bring a survival action on behalf of the estate.
What’s the difference between survival actions and wrongful death?
Survival claims are different from wrongful death claims. A personal representative will also file a wrongful death claim, though for the benefit of the beneficiaries instead of the estate.
Thus, the wrongful death claim will address damages the surviving family members – spouses, children, parents – suffer because of the death.
- Emotional distress
- Loss of guidance
- Loss of services
The beneficiaries directly recover compensation from a wrongful death claim, but recover compensation from a survival action through the estate based on a will or New York law, as noted above.
My loved one died. Can I change a personal injury claim to a wrongful death and survival action?
Whether you have a valid case depends on the circumstances of the case. You must establish the elements mentioned above, and thoroughly demonstrate the damages suffered by the decedent (for a survival action), as well as beneficiaries (for a wrongful death action). Talk to an attorney about your eligibility for such claims.
Call 800-550-0000 to speak with a New York personal injury lawyer at Gacovino, Lake & Associates. You can also fill out our form located on our contact page to schedule a free initial consultation with an attorney at our firm and discuss your case.