Wrongful death is an action separate from a survival claim. In a wrongful death action, damages are measured in terms of the harm to others from the loss of the victim.
In a survival action, damages are measured in terms of the harm to the victim. A survival action is brought on behalf of the deceased person by the personal representative of the estate of that person. There, the personal representative seeks recovery for the injuries suffered by the decedent. Economic damages in a survival action which are recoverable include the decedent's lost wages and medical expenses incurred between the time of injury and death, in addition to funeral expenses of up to $5,000.
Non-economic damages recoverable include compensation for the pain and suffering endured by the deceased person after the injury and before his or her death. It includes compensation for such emotional distress and mental anguish as are capable of objective determination for pre-impact fright.
The differences between a survival action and a wrongful death action were defined long ago, in Stewart v. United Electric Light & Power Co., 104 Md. 332, 339-40, 65 A. 49, 52 (1906), as follows:
"Under the [wrongful death statute,] the damages recoverable are such as the equitable plaintiffs have sustained by the death of the party injured. Under [the survival statute] the damages recoverable are such as the deceased sustained in his lifetime and consequently exclude those which result to other persons from his death. Under the [wrongful death statute] the damages are apportioned by the jury among the equitable plaintiffs, and belong exclusively to them and form no part of the assets of the decedent's estate; under [the survival statute] the damages recovered go into the hands of the executor or administrator and constitute assets of the estate.
Under [the wrongful death statute], there is no survival of a cause of action the cause of action is created by it and is a new cause of action and consequently one which the deceased never had; under [the survival statute] there is a survival of a cause of action which the decedent had in his lifetime."
Consult with an attorney right away. You may be a person involved in different ways with separate remedies that an attorney will know to explore in your interview. Preparation is the key to a good legal outcome.
