According to a recent study, medical errors account for more than 250,000 deaths every year— making medical malpractice the third leading cause of death in the United States. Healthcare facilities and professionals are responsible for treating patients to the best of their abilities. When negligent actions lead to a patient’s death, the negligent healthcare professionals may be held responsible. If someone close to you has died as a result of a health care professional’s negligence, contact the Law Offices of Cardaro and Peek today to schedule a FREE consultation.
If you are not an attorney (or even if you are), you may be confused as to what type of lawsuit to file. Survival action or wrongful death (or both)? Below, we will outline the differences between a “wrongful death” action and a “survival” action.
Wrongful Death vs. Survival Action
There was a point in time where a personal action died with the person— the moment a person passed away, any cause of action that person could maintain against another could no longer be brought. This was incredibly unfair, as it left the surviving spouses/children/dependents of an individual who died due to someone else’s negligence with no recourse. Thankfully, that is no longer the case. Each state has adopted its own “wrongful death” statute which (in general) provides that “[a]n action may be maintained against a person whose wrongful act causes the death of another.” A wrongful death action is brought by the victim’s family members, also defined as “wrongful death beneficiaries.”
Wrongful death damages are framed in terms of loss/harm to the wrongful death beneficiaries (not the deceased individual). In other words, wrongful death damages are the mental anguish and pain/suffering due to the death of a loved one. This includes loss of society, companionship, comfort, protection, attention, advice, counsel, training, marital care, parental care, filial care, and economic damages like loss of future economic support.
On the other hand, a survival action is seeking damages based on the harm to the deceased individual prior to their death. It is brought by the personal representative of the decedent’s estate. The damages include pain/suffering prior to death, mental anguish due to knowledge of impending death, medical bills, and funeral/burial expenses.
Which Action to File?
Generally, both. Because they cover different damages, it is typical to file both actions in the same complaint to obtain “full” recovery. Additionally, both a wrongful death action and survival action alleging medical malpractice require proof of the same general elements, so if you are filing one, you might as well file the other.
Of course, there are situations in which it is only possible/advisable to file one of the two actions. This is why hiring the right Medical Malpractice attorney/firm to handle your case is important. For example, the lawyers at Cardaro & Peek have been litigating Medical Malpractice cases in Maryland and Washington D.C. for over thirty years, both as Defense and Plaintiff attorneys, and have the knowledge and experience to know which details are important, and which claims to file in order to get the result you deserve.
Contact The Law Offices of Cardaro & Peek, LLC Today
The lawyers of Cardaro & Peek, LLC have the experience and resources necessary to investigate and litigate all types of medical claims throughout Maryland and Washington D.C. Cardaro & Peek, LLC has medical personnel on staff and has access to nationally recognized, board-certified physicians and other experts, to assist in the investigation, analysis, and prosecution of all types of medical malpractice claims. If you or a loved one have experienced malpractice, give us a call at 410-752-6166. Please visit our website www.cardarolaw.com and follow us on Facebook, Twitter, Google+, and LinkedIn for more information.