What if Someone Dies Before or During Their Personal Injury Lawsuit?
Several of our personal injury clients have expressed concern about what will become of their lawsuits if they fail to survive their injuries. It is only natural to feel this way, particularly when someone’s neglect or wrongful action has caused them serious physical harm. The biggest worry often involves their families. If their lawsuits should die with them, what will happen to the ones they leave behind?
People may tell you that in this sort of instance, you are bound to be out of luck. If this is what you’re hearing, please don’t believe it. When one of our clients confides these fears to us, we have just one thing to tell them: Don’t worry.
The truth is that many people who suffer traumatic injury through no fault of their own may remain alive for quite some time. They might even start a personal injury suit, only to succumb to their injuries while it is still ongoing.
Our advice to any clients who fear that their lives will end before their personal injury suits have reached a successful conclusion is always the same. If you should die as the result of another person’s neglect or wrongful action, a family member or personal representative has the right to recover damages on your behalf, either through a survival cause of action or a suit for wrongful death.
The Survival Cause of Action
This option, also known as a survival action, consists of four distinct elements, as follows:
- The plaintiff must be a family member or a legal representative of the decedent.
- The person who died must already have embarked upon a personal injury suit.
- The injury and subsequent death of the person who died must have resulted from a wrongful act on the part of the defendant.
- The facts of the case must show that the person who died as the result of these injuries had sufficient legal grounds for seeking relief.
The Wrongful Death Suit
If a survival cause of action will not be possible, a wrongful death suit is another option. We must warn you that this type of suit does come with its restrictions. In general, it can be brought only by a personal representative of the individual who has died. This is normally an executor whom the deceased has named specifically in a will. In addition, the death must be directly traceable to injuries received in the wrongful or neglectful action and cannot have resulted from an unrelated cause.
The executor in a wrongful death suit is responsible for such things as hiring a personal injury attorney and speaking with insurance companies. The executor alone will decide whether the offered amount of damages is acceptable, and upon the settlement of the suit, he or she will receive the money. He will then have the responsibility of splitting the proceeds among the parties named as heirs in the decedent’s will.
Wrongful Death Suit vs. Survival of Action
Although the outcome may be the same, a survival cause of action is different from a wrongful death suit in several ways. For one thing, it entitles your family to nothing more than what you would have received from your own personal injury suit. It will neither consider your family’s pain and suffering nor cover the expense of your funeral and final medical care. A wrongful death suit, on the other hand, will pay damages for these things.
In any case, if you haven’t already set the wheels in motion for a personal injury suit prior to your death, the survival cause of action will not be an option.
Potential Damages Obtainable After Your Death
Whether your survivors bring a survival cause of action or a wrongful death suit, the jury will base the amount of any damages on several factors. Chief among them will be:
- Your age at the time of death.
- How many years more you would otherwise have lived.
- Your health.
- Your intelligence.
- Your earning capacity.
- The cost of your medical care.
- The amount of pain and suffering you experienced.
A wrongful death suit will also factor in such elements as:
- Your funeral and burial expenses.
- Your loved ones’ grief and sorrow.
- The loss of your love, companionship, care, guidance and services.
- The loss of expected income and potential inheritance.
Considering Your Options
If you have any questions about personal injury, wrongful death suits and survival actions in the state of Nevada, the law firm of Gregory & Waldo is here to help. We understand the confusion that often surrounds these cases, and we will be glad to advise you of your best course of action. Call us today at 702-830-7925 for a free consultation.