Survival Actions vs. Wrongful Death Claims

January 18, 2021 | Attorney, Matthew Dolman
Survival Actions vs. Wrongful Death Claims

What is the Difference Between a Survival Action and Wrongful Death?

The pain of a loved one's unexpected death can be compounded by the circumstances surrounding that death. Many deaths are caused by negligence that is prohibited under Florida law and are subject to compensation. Common examples include fatal car accidents, medical malpractice, and workplace injuries. When negligence results in the death of a loved one, surviving family members have legal rights which are protected by state law. An experienced Clearwater wrongful death attorney can help you determine whether you have an actionable claim as a result of a family member's death.

What Is the Difference Between a Survival Action and a Wrongful Death Claim?

A survival action is based upon the legal claims of the person who died (the decedent). If he or she had lived, there would have been a claim for pain and suffering, medical expenses, and other such expenses as a result of the defendant's negligence. Florida law allows these claims to survive the plaintiff's death. (See Section 46.021 of the Florida Statutes.) A person who has been appointed by the probate court to act as the decedent's personal representative can bring these claims against the defendant. Often, the personal representative is also the administrator of the decedent's estate.

By contrast, a wrongful death lawsuit is based upon the legal claims of the surviving family members. These survivors have their own legal claims for the loss of companionship, loss of income, and other losses which were caused by the defendant's negligence. Sections 768.16 through 768.26 of the Florida Statutes contain the Florida Wrongful Death Act. This Act sets forth procedural requirements for filing a wrongful death claim, including who can file a claim, when such a claim must be filed, what financial losses are able to be recovered in such a lawsuit, and other similar matters.

Most deaths caused by negligence result in a combination of claims for both the decedent and the survivors. These claims can all be litigated together in a single lawsuit which explores the circumstances of the death, the liability of each defendant, and the exact value of the financial losses which were incurred as a result of the defendants' negligence.

Wrongful Death in the News

Sadly, wrongful death and survivors' actions are a common occurrence. Many such cases are in the news at any given time. According to CNN, the family of actor Bill Paxton has recently filed a wrongful death lawsuit in the wake of his untimely death after a surgical procedure at Cedars-Sinai Hospital. The family alleges that Paxton's surgeon used a high risk and unconventional surgical approach with which he lacked experience. The family further claims that the hospital and surgeon misrepresented or concealed information relating to the risks of surgery. These factors are alleged to have contributed to Paxton's post-surgery complications, which ultimately caused a stroke that resulted in the actor's untimely death.

Wrongful death lawsuits are also cropping up as a result of the recent tragic increase in police shootings across the country. WBAL TV reports one such typical case out of Maryland. The victim was shot and killed by Baltimore County police in August 2016 after a daylong standoff. Now, the family has sued the county for $4 million in a complicated wrongful death lawsuit that made it all the way through a lengthy trial. The trial has now become a battle of witnesses. The defense has presented a ballistics expert, who testified that the situation was “as dangerous a situation as police officers face. It's fraught with peril, potentially seriously dangerous to the officers.” By contrast, the family presented testimony from six other officers who were on the scene that day. These officers had stated under oath that they were not in the victim's line of fire as she held a rifle. They testified that they did not feel unsafe. Now, it is up to the jury to weigh this competing evidence and determine whether the officer was justified in shooting the victim.

What Damages Are Available to Plaintiffs in a Survival Action or Wrongful Death Lawsuit?

The value of your claim will depend upon whether it is filed as a survival action on behalf of the decedent, or a wrongful death action on behalf of the surviving family members. A survival action allows the decedent's personal representative to recover all financial losses (“damages”) to which the decedent would be entitled, had he or she lived. This can include pain and suffering, medical bills which were incurred as a result of the negligence before the death occurred, lost income between the time of the injury and the time of death, property damage (such as a vehicle which was damaged in a car accident which killed the victim), and other financial losses the victim suffered which were directly attributable to the defendant's negligence.

Family members have different types of damages, which are based upon their own separate losses. They are entitled to sue the defendant for the loss of the decedent's companionship, the lost income the decedent could be expected to have earned between the time of death and his or her projected retirement, and funeral or burial expenses. Any expense which the surviving family members incurred as a direct result of the defendant's negligence is a potential source of compensation. An experienced wrongful death attorney can help family members identify all legal damages to which they are entitled and document these losses in order to present the strongest possible case for compensation to a jury.

The Right Legal Representation for Your Personal Injury Claim

The Dolman Law Group Accident Injury Lawyers, PA has over forty-six years of experience in protecting the rights of injury victims and surviving family members in and around the Clearwater area. Call(727) 451-6900  or fill out a contact form online to schedule your free consultation with a personal injury attorney today. Injury victims across southern Florida trust our professional staff, comprehensive legal expertise, and superior customer service. Learn how an experienced Clearwater personal injury attorney can protect your legal rights after any type of personal injury.

Dolman Law Group Accident Injury Lawyers, PA
800 North Belcher Road
Clearwater, FL 33765

(727) 451-6900


Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has successfully fought for more than 11,000 injured clients and acted as lead counsel in more than 1,000 lawsuits. Always on the cutting edge of personal injury law, Matt is actively engaged in complex legal matters, including Suboxone, AFFF, and Ozempic lawsuits.  Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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