Quantcast
Survival actions and wrongful death scenarios - December 14, 2017 - SF Weekly
SF Weekly

Survival actions and wrongful death scenarios

If a plaintiff dies during the process of bringing legal action against another, the “survival statutes” prevent the extinction of the cause of action of the injured person and provide for its enforcement by or against the representative of the deceased. (Courtesy photo)

This week’s question comes from Mike B., who asks:

Q: “What happens if, during a personal injury or medical malpractice case, the plaintiff succumbs to their injuries and dies? Does it cause a new action to be filed or simply the old one to be amended? And, more importantly, does it affect the damages that can be recovered?”

A:
 Mike, there are many variables to this complex question, and I can only provide a general overview. It is not legal advice. More facts are needed. If you have suffered a loss such as this, you should consult with a trial lawyer immediately.

If a person is injured — whether it be from a medical malpractice action or any other form of personal injury — and they later die from those injuries, this leads to a very technical application of the law. I’ll discuss two scenarios here: survival actions and wrongful death. Either or both may apply in any given case.

First, under the California Code of Civil Procedure, Section 377.20, a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period. These are called “survival actions.” California Code of Civil Procedure, Section 377.30, states that a cause of action that survives the death of the person passes to the decedent’s successor in interest, (subject to the Probate Code) who may bring, or continue, the cause of action.

So, if a person had rights to bring a legal case before their death — whether it be from a breach of contract, fraud, medical malpractice or personal injury — when they die, that right passes on to their estate or heirs. This is similar to the right to collect a debt owed to the decedent, where the heirs or estate would be entitled to collect on that debt. Likewise, if the decedent owed a debt, creditors could seek to recover the debt from the decedent’s estate.

The “survival statutes” do not create a cause of action; rather, they merely prevent the extinction of the cause of action of the injured person and provide for its enforcement by or against the representative of the deceased.

If the decedent had a case pending at the time of their death, Code of Civil Procedure, Section 377.31, states their representative can file a motion after the death of the person who started the action and the court shall allow it to be continued by the decedent’s estate, or if none, by the decedent’s heirs or successors in interest.

In a survival action, the damages recoverable are limited to the loss that the decedent sustained or incurred before death, i.e., economic losses such as medical expenses, economic loss, etc., as well as any penalties, punitive or exemplary damages that the decedent would have been entitled to recover had they lived. This does not include damages for pain, suffering, or disfigurement which the decedent suffered before their death, though there is an exception for a death from elder abuse.

Upon the death of a person who was harmed by the wrong of another, the decedent’s surviving spouse, domestic partner, children and children of their deceased children, and/or any minor who resided for the previous 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support, may bring a case for wrongful death. This is not a “survival action” continuing the case of a person who died, but rather a separate cause of action, for those left behind, which can be joined with the survival action pursuant to Code of Civil Procedure 377.62. All of those who qualify must participate in one single action or lawsuit for wrongful death.

Unlike a survival action, which compensates for losses before and up to the death, a wrongful death action is designed to compensate the families of those who die for losses from the date of death forward such as funeral and burial expenses, financial support, if any, which each of the heirs would have received from the deceased but for the death. Additionally, they can recover non-economic damages for the loss of the relationship classified as loss of love, companionship, comfort, affection, society, solace or moral support and, between partners or spouses any loss of the enjoyment of sexual relations.

The amount of recovery for these non-economic damages is directly related to how close the plaintiff was to the decedent. As I mentioned earlier, if you have suffered a loss from a wrongful death you should consult with a trial lawyer immediately.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.