A survival action is distinct from a wrongful death claim. A survival action is brought by the personal representative of a decedent’s estate, and the death in question is unrelated to the injury giving rise to the lawsuit. In a wrongful death action, the action is still brought by the personal representative of the estate, but the lawsuit deals explicitly with death.
In a survival action, the estate is entitled to recover the pain and suffering of the injured person from the date of their injury to their death. In a survival action, however, the estate cannot recover for net accumulations, burial, or funeral expenses. For help with recovering damages for the suffering of your loved one, contact a compassionate Boca Raton survival action lawyer. Let a dedicated wrongful death attorney help you seek justice.
Representing an Estate
When a person in Boca Raton dies intestate, meaning without a will, Florida Statute 733.301(1)(b) provides an order of preference for the appointment of a personal representative. The order is as follows:
- Surviving spouse
- The person selected by a majority in interest of the heirs
- Heir nearest in degree
Florida Statute 733.303 governs persons who are specifically prohibited from serving as a personal representative. An individual may be prohibited from serving as a personal representative if:
- They have been convicted of a felony
- Are mentally or physically unable to perform the duties of a personal representative
- Under the age of 18
For more information regarding representing an estate, contact a dedicated survival action lawyer in Boca Raton.
Damages are either compensatory or punitive. Compensatory damages are broken up into two different categories: economic and non-economic damages. Economic damages are objectively verifiable and include a person’s past and future medical expenses and lost past and future earnings, loss of use of property, and costs of repair or replacement. Non-economic damages are not quantifiable and are subjective. Non-economic damages may include non-monetary losses such as pain and suffering, inconvenience, emotional distress, loss of enjoyment of life, and loss of consortium.
In survival actions, the estate of the deceased is entitled to recover for the decedent’s pain and suffering from the date of injury until their death. It is not easy to measure or calculate pain and suffering. Therefore, it might be necessary for an experienced lawyer to hire an expert to quantify it. Juries may consider several factors when determining the amount of pain and suffering, including the severity of pain, the duration of suffering, and the apprehension of impending death.
Common medical bills that accompany survival actions include bills from the ambulance, hospital, emergency room physician, radiology department, chiropractic or physical therapy bills, pain management or orthopedic bills, diagnostic testing, and surgery. Medical bills are considered to be compensatory economic damages in survival actions.
Funeral Costs are Not Available in Survival Actions
It is important to understand that funeral costs are not compensable in survival actions. However, they may be in a wrongful death claim. Some components of funeral costs include a viewing and burial, embalming, hearse, and transfer of remains. Funerals and the associated costs can be expensive and often cost several thousands of dollars.
Contact a Boca Raton Survival Action Attorney
The firsts step to initiate a survival action in Boca Raton is that an estate is opened and a personal representative is appointed on behalf of the deceased person. After a personal representative is appointed, a lawsuit against the negligent party may be initiated on behalf of the deceased’s estate with the help of an attorney. Once a lawsuit is initiated, a survival action proceeds the same way as any other personal injury lawsuit.
The estate is entitled to recover on behalf of the deceased person, including their pain and suffering from the date of injury to their death, their lost wages, and their medical bills. Establishing liability in a survival action is no different than establishing liability in a typical personal injury negligence matter. The elements to prove a survival action case are the same: the plaintiff must prove, by a preponderance of the evidence, that the defendant owed a duty to the plaintiff, that the defendant breached that duty, that the defendant’s conduct caused the plaintiff’s injuries, and that the plaintiff suffered damages. For help recovering damages following the death of your loved one, contact a dedicated Boca Raton survival action lawyer.