What Are Survival Statutes?
Posted on January 24, 2019 in Uncategorized
Survival statutes protect an injured person’s right to recover compensatory damages for an accident even after he or she dies. In the event of death, the estate of the deceased can pursue legal action against the negligent party and receive compensatory damages. A person does not need to die from his or her injuries immediately. If the deceased files a lawsuit prior to death, the survival statutes still apply.
The wrongful death of a loved one can not only cause emotional pain but financial burdens as well. If you lose your parent or spouse, for example, you lose the financial support he or she provided to you as well as his or her physical presence. To compensate your losses, you may want to pursue legal action through a wrongful death lawsuit.
Understanding Various States’ Survival Statutes
Survival statutes vary from state to state, but in most cases, the personal representative of the deceased’s estate is responsible for carrying out a lawsuit and receiving the damages. Under Oregon law, the personal representative of the deceased’s estate may carry on the legal process.
Survival statute actions do not need to arise out of the original injuries suffered by the deceased. If the deceased dies from natural causes while in the middle of a lawsuit, the estate can assume the process for damages related to the original injury. However, the estate cannot claim damages for the death, because the cause of death is unrelated to the claim. Survival statutes apply to the continuation of an original injury claims process, not new actions that arise out of death.
The Difference Between Survival Statutes and Wrongful Death Claims
Survival statutes are different than wrongful death claims. Many people can confuse the two, because they both involve the death of a claimant in a case. Under Oregon law, when a person dies as a result of another person’s negligence, his or her personal representative can launch a lawsuit against the at-fault party to collect compensation. This personal representative can collect damages on behalf of the deceased’s immediate family, such as children and spouses.
Survival statutes can apply to situations that involve causes of death that are related and unrelated to the original claim. In wrongful death lawsuits, the claims at hand must relate directly to the negligent acts. If you are unsure which type of claim to pursue, speak to a personal injury attorney to discuss your options.
Damages in Survival Statutes vs Wrongful Death Claims
Because survival statutes and wrongful death claims are usually different, you can claim different types of damages through each case. You cannot claim wrongful death damages in a survival action, and vice versa.
When the estate representative takes over a claim from a deceased person under survival statutes, he or she you can claim the damages that the deceased would have received if he or she had lived to receive a settlement.
- Medical expenses related to the injury
- Lost wages due to recovery from the injury up until his or her death
- Pain and suffering experienced by the deceased due to the injury
Wrongful death damages differ from survival action damages. You can claim the following damages in wrongful death claims under Oregon law:
- Reasonable funeral and burial expenses
- Lost wages and benefits that the deceased could have provided to his or her family
- Loss of care, companionship, guidance, and comfort suffered by the family
- Pain and suffering experienced by the deceased before death
- Medical expenses related to the fatal injuries
Determining whether you should pursue a survival action or wrongful death suit in Oregon can be difficult, especially if the injuries in the claim did cause the death. Consult with a Portland personal injury and wrongful death attorney to determine the best course of action.