Survival Action vs Wrongful Death Claims: What is the Difference?
A survival action is essentially a personal injury claim where someone suffers a personal injury, and later dies of causes unrelated to the accident. This type of claim is brought on behalf of the deceased’s estate and seeks compensation for losses such as medical expenses, lost wages, and pain and suffering endured by the deceased prior to their passing.
In contrast, a wrongful death claim is a claim brought on behalf of the decedent’s beneficiaries where a person is injured in an accident, and dies as a result of the injuries that person received in the accident. This type of claim seeks compensation for the impact of the death on surviving family members who qualify as beneficiaries, providing compensation for losses like the loss of companionship, income, and funeral expenses. If you have questions about a wrongful death or survival action case in Virginia, contact the office of Cantor Grana Buckner Bucci for a free consultation with an experienced wrongful death attorney.
What Are the Elements of a Wrongful Death Claim?
To establish a wrongful death claim in Virginia, certain legal elements must be proven.
- Death of a Person – The claim must involve the death of an individual caused by the wrongful act, neglect, or default of another party.
- Causation – It must be demonstrated that the defendant’s actions or failure to act directly caused the death.
- Legal Standing – The claim can only be brought by the deceased person’s personal representative on behalf of the beneficiaries. Which family members qualify as a beneficiary is set forth in the Code of Virginia.
- Damages – The death must have resulted in quantifiable damages, including financial loss, emotional suffering, or loss of companionship experienced by the deceased’s family members.
Meeting these elements is essential to successfully pursuing a wrongful death claim and achieving accountability for the harm caused.
What Are the Elements of Survival Action?
To successfully pursue a survival action in Virginia, specific elements must be established.
- Cause of Action – The decedent must have had a valid cause of action for personal injury or other damages at the time of their death.
- Continuity of Claim – The survival action continues the claim that the decedent could have brought had they survived, allowing recovery for damages suffered by the deceased.
- Eligible Representative – The action must be brought by the personal representative of the decedent’s estate.
- Recoverable Damages – Damages typically include medical expenses, lost wages, and pain and suffering experienced by the deceased prior to their death – the same kinds of damages typically sought in a personal injury action.
- Jurisdiction and Timing – The survival action must be filed within the statutory deadlines and in the proper court with jurisdiction to hear the case.
By proving these elements, the decedent’s estate can recover compensation for the suffering and losses endured, holding the responsible party fully accountable for their actions.
Who Can File a Survival Action Lawsuit in Virginia?
A survival action lawsuit in Virginia must be filed by the personal representative of the deceased person’s estate. The personal representative must qualify before a Virginia Circuit Court Clerk. The personal representative is responsible for compiling all relevant evidence, managing the legal process, and ensuring that any compensation awarded is distributed properly in accordance with the decedent’s estate plan or Virginia’s intestacy laws if no will exists.
Can You File Both Wrongful Death Claims and Survival Action Claims?
Yes, in Virginia, it is possible to file claims for both wrongful death and survival actions if it is unclear whether the injuries sustained by the decedent caused his death. However, eventually the personal representative will have to elect which damages they are claiming.
Virginia Wrongful Death and Survival Action Claim Laws
To pursue a survival action claim after a wrongful death in Virginia effectively, understanding the specific laws governing these cases is essential. Under Virginia Code § 8.01-25, a survival action does not create a new cause of action but allows an existing claim to continue on behalf of the deceased’s estate. This statute ensures that the legal rights of the deceased are preserved, enabling their estate to recover damages for injuries and losses that the deceased would have been entitled to claim had they survived.
Evidence Needed to File a Wrongful Death Lawsuit
To successfully file a wrongful death lawsuit, it is imperative to gather strong evidence that establishes liability, damages, and the connection between the wrongful act and the deceased’s passing. Key types of evidence include:
- Official Records
- Witness Testimonies
- Financial Documentation
- Expert Opinions
- Photographic or Video Evidence
A well-documented case with comprehensive evidence builds credibility and increases the likelihood of securing a favorable outcome for the victims’ families.
Evidence Needed to File a Survival Action Lawsuit After Death of an Injured Person that was not due to Injuries caused in the accident.
To successfully file a survival action claim, compelling evidence must be gathered and presented to establish the circumstances surrounding the deceased’s injuries and eventual passing. Key pieces of evidence include medical records documenting the treatment and progression of the injury or illness, eyewitness testimony from individuals who observed the events leading to the harm, and incident reports or police records detailing the facts of the case.
Additionally, evidence of the deceased’s pain and suffering before their passing, such as medical assessments or testimonies from healthcare providers, can strengthen the claim. The survivors can ensure their claim withstands scrutiny and achieves the desired outcome by compiling thorough and credible evidence.
What Damages Can You Claim in Wrongful Death Suits?
Wrongful death claims in Virginia allow the surviving family members to seek compensation for various types of damages resulting from their loved one’s untimely demise. These wrongful death damages are divided into two categories: economic and non-economic.
Economic damages
- Medical bills incurred before the deceased’s passing
- Funeral costs and burial expenses
- Loss of the deceased’s financial support, including income, benefits, and future earnings
- Loss of services, protection, care, and assistance that the deceased would have provided to their family
Non-economic damages
- Loss of companionship, love, and emotional support
- Loss of guidance, advice, and nurturing provided by the deceased
- Emotional distress and mental anguish caused by the loss of a loved one
What Damages Can You Claim in Survival Action Claims?
Survival action claims after a wrongful death in Virginia allow the deceased’s estate to recover specific damages that the individual could have recovered in a personal injury claim had they survived.
- Medical expenses incurred by the deceased before their death
- Lost wages and income the deceased would have earned
- Pain, suffering, and mental anguish experienced by the deceased before passing
- Property damage or loss related to the incident
How Will a Personal Injury Attorney Help Me Pursue a Survival Action or Wrongful Death Suit?
A skilled personal injury attorney is indispensable in navigating the complexities of survival action and wrongful death claims. They provide expert guidance on legal procedures, identify critical evidence to support your case and ensure all legal deadlines are met, preventing the risk of losing your right to recovery. Attorneys also have extensive experience negotiating with insurance companies and opposing counsel to secure a settlement reflecting the full scope of your losses.
By working closely with you, a knowledgeable attorney will evaluate the unique circumstances of your case, calculate the rightful damages, and construct a compelling legal strategy tailored to your goals. If necessary, they will fearlessly advocate in court, presenting a thoroughly prepared argument that maximizes your chances of a successful outcome. Their involvement alleviates the emotional and procedural burdens often associated with wrongful death and survival action cases, empowering you and your family members to focus on healing while pursuing the justice and compensation you deserve.
Choose a Virginia Law Firm with Experienced Wrongful Death Attorneys
Cantor Grana Buckner Bucci, The Virginia Trial Firm
Selecting the right legal team is critical when it comes to wrongful death cases. Cantor Grana Buckner Bucci is a renowned Virginia trial firm with a proven track record of delivering results in the most challenging and high-stakes cases.
Backed by decades of combined experience, our team of assertive, results-driven attorneys is dedicated to advocating for family members who have suffered unimaginable losses. We pride ourselves on taking on powerful opponents, such as large corporations and insurance companies, and holding them accountable for their actions.
Our firm understands that every case is unique, demanding a meticulous and strategic approach. From the initial free consultation, our attorneys work closely with you to understand every detail of your case, clarify your objectives, and develop a winning legal strategy.
With an unwavering commitment to justice, Cantor Grana Buckner Bucci delivers bold, confident representation, ensuring no stone is left unturned in pursuing the maximum compensation your family deserves. When you choose us, you’re not just hiring lawyers — you’re partnering with trial professionals who will relentlessly fight for your rights.