The First Steps to Take for a Survival Action Claim

by Staff Blogger | June 19th, 2023

When you lose someone unexpectedly and suspect another party is at fault for their death, it is a good idea to talk to a survival action lawyer as soon as possible.

A survival action claim allows the family of a deceased person to pursue compensation on behalf of their loved one’s estate. A survival action claim aims to ensure that the estate is fully compensated for the harm the deceased suffered, even if they are no longer alive, to pursue the claim themselves.

Filing a survival action claim can be a complex and emotional process. Understanding the first steps to take can help you get compensation on behalf of your deceased loved one and hold the negligent party responsible.

What Is a Survival Action?

A survival action claim is a legal action filed on behalf of a deceased person’s estate to recover damages for losses the person suffered before their death. This type of claim compensates the estate for the damages the deceased suffered before their death, such as pain and suffering, medical expenses, and lost wages.

A survival action claim differs from a wrongful death claim. A wrongful death claim is a legal action brought by family members of the deceased seeking compensation for damages resulting from their loved one’s death. This can include loss of income, loss of companionship, and funeral expenses.

The First Steps of Your Survival Action Claim

When filing a survival action claim, taking the right first steps can help you streamline the process and receive maximum compensation on behalf of your deceased loved one. The first steps include gathering medical bills and records, identifying the estate’s legal representative, and speaking with an attorney.

  • Gather Medical Bills and Records

Gathering medical bills and records is crucial in filing a survival action claim. This documentation establishes the extent of the deceased’s injuries or losses before their death. For example, if your loved one died in a car accident, their medical records show the injuries they suffered, such as broken bones or internal bleeding, and the associated costs of their medical treatment.

  • Identify the Legal Representative of the Estate

Your family must identify the legal representative of the deceased’s estate when filing a survival action claim. The legal representative, called an executor in California, is the only person who can bring the claim on behalf of the estate.

Typically, the decedent’s will names the legal representative, usually the spouse. If your loved one did not have a will when they passed, the court appoints an executor based on family relations, beginning with the spouse, followed by parents, children, siblings, or a court-appointed guardian for minors. If there is no one else, a public administrator may be appointed.

Knowing the legal representative’s identity ensures the claim is filed correctly and the estate is properly represented in the legal process.

  • Speak with an Attorney

Speaking with an experienced California wrongful death attorney is crucial when pursuing a survival action claim. You may face legal and procedural obstacles during the claims process, such as disputes over liability or meeting the statute of limitations for filing a claim.

For example, if your loved one passed due to complications from a defective medical product, such as a pacemaker. The device manufacturer denies wrongdoing and argues that the device was properly designed and manufactured and that the deceased’s injuries were due to other factors.

Your attorney can help you navigate this liability dispute by gathering evidence to support the estate’s claim, such as analyzing technical specifications, consulting with experts, and reviewing your loved one’s medical records. They can use this evidence to show the harm your loved one suffered before their death to win compensation for the estate.

A skilled attorney can provide guidance and advice on addressing and overcoming these obstacles, gathering evidence, negotiating with insurance companies, and representing the estate in court. Without legal representation, it can be challenging to navigate the complexities of the legal system and secure fair compensation for the harm and losses the deceased person suffered.

Types of Recoverable Damages

In a survival action claim, the estate of the deceased may be entitled to several types of recoverable damages. These damages include medical expenses, lost wages, and pain and suffering. Damages you may be able to recover include:

  • Medical Expenses

The estate may be entitled to recover the cost of the deceased’s medical treatment before their death. This includes hospital bills, doctor’s bills, prescription medication costs, and other medical expenses. Your attorney will use your loved one’s healthcare-related bills to estimate these damages.

  • Lost Wages

If the decedent was employed at the time of their death, the estate may be entitled to recover the wages they would have earned if they had not been injured. This includes any future income the decedent would have earned if they had not died.

To calculate lost wages, gather the deceased’s pay stubs, tax returns, and other documentation related to their income. Your attorney will use these to determine the lost income and future lost earnings on behalf of your loved one.

  • Pain and Suffering

The estate may be entitled to recover damages for the deceased’s pain and suffering before their death. This includes physical pain, emotional distress, and other non-economic losses. Your attorney will assess the evidence detailing your loved one’s pain and suffering, such as their personal journal, statements from family and friends, or expert testimony, to calculate pain and suffering damages for the estate’s settlement.

Speak With a Knowledgeable Attorney About Filing a Survival Action Claim

Pursuing a survival action claim can be a difficult and emotional process, but it is an important legal tool for obtaining justice and compensation for the estate of a deceased person.

At Berg Injury Lawyers, we have nearly 40 years of experience filing survival action claims in California. We will work with your family on behalf of your loved one’s estate to help you win compensation for the harm they suffered due to another’s negligent actions before their death.

Contact us today to schedule a free consultation and learn more about how we can help you with your survival action claim.