There are many similarities between a personal injury and a wrongful death claim. Both types of claims are based primarily on negligence, meaning there was an expected duty to protect or prohibit harm, there was a breach in the duty, and the injury and/or death as a result of the breach of duty. In either situation, someone suffered an injury, and the injury caused medical bills, loss of income, and other damages. Although there are several similarities between the two types of claims, they are also significantly different in who can bring forth action and what type of compensation is awarded.
Types of Claims That Can be Made
When someone dies as the result of someone else’s negligence, there are two types of claims that the family of the deceased person can make, wrongful death claims and/or survival actions. Both a wrongful death claim and a survival action claim have statutory laws and are strictly governed by state laws. Prior to the states passing statutes that allowed these types of claims, the claim for personal injury died with the deceased. The estate of the deceased had very little to no right to a claim for personal injury after the deceased’s death.
The wrongful death law allows the estate (survivors of the deceased) to bring a lawsuit and proceed with legal procedures for a wrongful death lawsuit. The primary difference between the two is that the wrongful law allows the survivors to be awarded beneficiaries of the deceased and the survival laws allow damages to be awarded that the deceased would have been awarded if they hadn’t died. For instance, damages may include lost earnings and pain and suffering.
Types of Damages You Can Receive
The primary difference between a personal injury claim and a wrongful death claim is who the compensation is awarded to and the types of damages you can receive. A personal injury claim is based on the injuries that happen to an individual. Generally, personal injury claims require the injured person to receive medical treatments for a specified amount of time in order to address their injuries. Once treatment is completed, demand for compensation from the negligent part is made for compensation of their injuries. Compensation is usually awarded for lost wages, medical bills, and pain and suffering. In some situations, a spouse of the injured person can file a separate claim for loss of services or duties that they could not do as a result of their injuries.
In a wrongful death claim, the injured party is deceased, so the demand for compensation is based on lost wages, medical treatment, and funeral expenses. Since the claim is being filed for the survivors of the deceased, there is no pain and suffering because the injured person is no longer living. The claim for lost wages is based on the potential future earnings of the deceased and the medical treatment wages are based on the treatment the person received until their death and the funeral expenses are for the cost of the final arrangements for the deceased.
So, while personal injury claims are awarded to the injured person, wrongful death claims are filed by and compensation is awarded to the survivors (estate) of the deceased. Wrongful death claims are basically awarded to provide for the survivors of the deceased that were dependent on them for support and living maintenance.
Are Damages for Wrongful Death More Than for a Personal Injury Case?
When someone files a personal injury claim, it is assumed that the injured person will at some time in the future be able to return or somewhat return to their usual duties or activities. If not, they are compensated for their expected future lost wages and future medical treatments. However, in a wrongful death claim, the case is being brought forth by the survivors of the deceased, which means they may be able to recover the costs of the medical care received prior to their death, the value of the deceased lost benefits, such as medical and health coverage and pension benefits, the loss of consortium, loss of future earnings and general damages.
Although wrongful death lawsuits have strict laws that are governed by the state and each state has its own specific procedures and state laws, there are some commonalities among states in regards to wrongful death laws. Some of the commonalities include who can file a wrongful death lawsuit on behalf of the deceased and their estate, how the representative is appointed and their estate, and the types of damages that are allowed in a wrongful death case. The personal representative of the estate, which is generally the deceased’s closest surviving relative, such as a spouse, parent, or child must file the lawsuit. The family of the deceased is who typically determines who the personal representative will be. When you make the decision to file a wrongful death claim, it is critical that you have an experienced, qualified lawyer to help you navigate the legal system in order to help you receive the compensation you deserve.