In the most extreme cases, the negligence of a medical professional causes the death of the patient. No person, not the patient, the patient’s family, or even the negligent doctor wanted such to happen. Nonetheless, the parties responsible for the death should be held accountable.
Experienced medical malpractice attorneys know that the decedent’s loved ones have a statutory right to commence a medical malpractice lawsuit against the negligent doctor even though the patient has died. There are two ways to recover damages when a loved one is killed by a negligent doctor; wrongful death actions and survival actions.
Wrongful death actions can be commenced by close relatives to the decedent; parents, children, siblings, and spouses, as long as the negligent act took the decedent’s life.
These family members seek compensation for their damages as a result of the decedent’s death. Inheritances lost, financial assistance lost, the loss of support, funeral costs, and medical expenses incurred in relation to the death can all be recovered. A number of these damages will be based on the decedent’s income at the time of death. Other factors will also impact the family’s jury award; the decedent’s earning capacity, career achievement, age, opportunities for career advancement and the like.
Survival actions are significantly different from wrongful death actions for one main reason. The survival action is an action on behalf of the decedent that seeks to compensate the decedent for the harm done to him or her. The person suing is doing so on behalf of the decedent. Compare this to the wrongful death action where the family that is suing is doing so to get compensation for their own personal losses, not the decedent’s losses.
Survival actions can only be commenced by a personal representative of the decedent who is typically appointed by a court. This personal representative is seeking to gain compensation for the estate of the decedent. The compensation sought would be for pain and suffering. All of the pain and suffering that which the decedent endured from the point of the negligent act up until the moment of death is considered. Any economic loss that the decedent incurred prior to death can also be recovered in a survival action.
Another important difference between wrongful death actions and survival actions surrounds who receives the jury award. It will be the family in the wrongful action; the decedent’s estate receives the award in survival actions instead of specific persons. The survival action captures compensation for the decedent’s estate. Whoever is entitled to receive distributions from the decedent’s estate would eventually receive the compensation; it could be family, friends, or even charities to whom the decedent willed property.
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