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What Is The Difference Between A Survival Action And A Wrongful Death Claim?

December 09, 2021

By van der Veen, Hartshorn, Levin & Lindheim

Recently, the Pennsylvania Superior Court overturned a lower court verdict that stated a $10 million award in a wrongful death case was disproportionately large compared to other cases in which a plaintiff had lost a loved one. The case involved a woman who lost her life after having surgery. The doctors at the spine surgery facility discharged a patient after surgery even though she still had high levels of anesthetic in her system. She died hours later after taking the additional pain medicine included in her postoperative instructions.

The family secured a $20 million verdict when the case was first heard by a jury. That amount totaled $10 million in wrongful death damages, and $10 million in a survival action. An appellate court later determined the amount of damages was excessive before the Superior Court stated that determining the value of a relationship between a loved one and their surviving family members was best left to a jury. So, what is the difference between a survival action and a wrongful death claim?

Wrongful Death Claims vs. Survival Actions

In Pennsylvania, any time another person’s negligence results in the death of another person, the family members of the deceased can file a wrongful death claim. Car accidents, construction accidents, medical malpractice, and even slip and falls can all result in a wrongful death. Through a wrongful death claim, relatives of the deceased can claim damages for their direct losses. These may include funeral and burial expenses, and any income of the deceased the household was dependent on.

A survival action, on the other hand, is essentially a personal injury claim the deceased could have filed if they had survived the accident. Survival actions, unlike wrongful death claims, are meant to compensate for the losses the deceased incurred prior to their death. Damages in these cases may include medical expenses, lost income, and pain and suffering.

Other Differences Between Wrongful Death Claims and Survival Actions

The damages available in wrongful death claims and survival actions are often different, but there are other differences between these two types of claims, as well. The individuals that receive compensation through a wrongful death claim are also different than in survival claims. The eligible relative that files a wrongful death claim will receive compensation and distribute it to other beneficiaries. Any damages recovered in a survival action are directed towards the deceased’s estate. Survival action damages are also subject to taxes and creditor claims, whereas compensation in a wrongful death claim is not.

Again, only eligible relatives can file wrongful death claims. These include a surviving spouse, parent, or child. The only person that can file a survival action is the personal representative of the estate. Survival actions are governed by the intestacy laws of Pennsylvania, which means if the person did not have a will or a named personal representative, one will be appointed as part of the survival action.

Our Wrongful Death Lawyer in Philadelphia Can Help with Your Claim

Losing a loved one is extremely difficult and now is not the time for you to work through the details of a wrongful death claim. At van der Veen, Hartshorn, Levin & Lindheim, our Philadelphia personal injury lawyer will handle every aspect of your claim and negotiate with the other side to help you recover the full compensation you deserve. Call us today at (215) 486-0123 or contact us online to schedule a consultation and to learn more about how we can help.


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