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What Happens if an Injury Victim Passes Away While Pursuing a Personal Injury Claim?

rose on top of gravestoneSome personal injury accidents cause fatal injuries – the victim may pass at the scene, on the way to the hospital or at the hospital a short time after arriving.

However, there are also situations when the victim may not pass for days, weeks or months after the accident. The victim may die due to complications from the injury or because of something unrelated to the injury that happened in the accident. For example, sometimes brain injury victims or burn victim pass away several weeks after the accident.

These victims may have had enough time to file an injury claim, which raises questions about the status of the claim.

Below, we discuss survival actions and wrongful death claims in Pennsylvania. If your loved suffered fatal injuries in an accident that resulted from negligence, our Harrisburg wrongful death lawyers may be able to help you seek compensation for damages suffered by your loved one and/or damages you have suffered because of your loved one’s passing.

Filing a Survival Action in Pennsylvania

In Pennsylvania, the representative of the deceased person’s estate can file what is called a survival action to recover compensation for damages suffered between the accident and the date the person died. State law says causes of action survive the death of the plaintiff(s) or the defendant(s).

It is important to note that a survival action is different than a wrongful death lawsuit. The purpose of a wrongful death lawsuit is to recover compensation for the damages suffered by family members after the loss of a loved one. A wrongful death lawsuit does not claim damages that occurred before the person died.

Another way to think about a survival action is that it is any type of claim the deceased could have filed when he or she was alive.

Damages in a Survival Action

The representative of the deceased’s estate can claim pain and suffering, lost earnings between the date of injury and death and lost future earnings.

However, to claim pain and suffering your lawyer must prove the deceased consciously felt pain and suffered from it. That means you cannot claim pain and suffering if your loved one was unconscious between the time of injury and death.

Who Can File a Survival Action?

Survival actions can be filed by the representative of the deceased individual’s estate. Often, this representative is a family member.

The representative is named in the deceased’s will, but if there is no will, the representative will be chosen by a court. This process is explained in Pennsylvania’s intestacy laws.

How Much Time is There to File a Survival Action?

The deadline for a survival action is two years from the date of the injury, not the date of death. That is why it is important to contact an attorney as soon as possible.

An attorney will need as much time as possible to investigate and build a strong case, both for a survival claim and wrongful death claim. Often, attorneys file wrongful death lawsuits at the same time as survival actions.

Differences Between Survival Actions and Wrongful Death Claims

An important distinction between a wrongful death claim and a survival action is that money recovered in a survival action can be used to pay off debts and other legal obligations of the deceased. This money is also subject to inheritance taxes.

However, compensation from a wrongful death claim cannot be taxed to pay estate taxes. This compensation also cannot be used to pay off the deceased’s debts.

The reason for this difference is the financial recovery from a survival action is considered property of the estate. Compensation from a wrongful death claim belongs to the deceased’s dependents.

Contact Schmidt Kramer to Discuss Legal Action

For decades, the legal team at Schmidt Kramer has been helping injury victims and their families secure compensation for injury damages. We recovered $2.2 million for the widow of a man who was killed in a truck crash on Interstate 78.

If you have any questions about legal action after the death of a loved one, we are here to help. There is no risk in calling to setup a consultation because it is free, and you are not obligated to hire our firm afterward.

Schmidt Kramer is here to help. No upfront fees. Call (717) 510-1770.