Survival Action
A survival action is a legal claim that the personal representative of a deceased person's estate brings on behalf of the deceased to recover damages for harm the deceased suffered from the time of injury until their death. Unlike a wrongful death claim — which compensates surviving family members for their own losses due to the death — a survival action compensates for the losses the decedent personally experienced before dying. These include medical expenses, lost wages, and most significantly, the physical pain and mental suffering the decedent endured between the injury and death.
Survival actions exist because at common law, personal injury claims died with the injured party — the right to sue for one's own injuries was considered personal and could not be transferred to heirs. Modern survival statutes in virtually every state have abolished this rule, allowing personal injury claims to survive the death of the injured party and be pursued by the estate. The estate recovers any judgment, which is then distributed to beneficiaries according to the deceased's will or the state's intestacy laws.
The most significant element of a survival action in a case involving a wrongful death is pre-death pain and suffering. If a person was seriously injured in a car accident and lingered in pain for days or weeks before dying of their injuries, the estate can seek substantial damages for that suffering through the survival action. Expert medical testimony about the nature and degree of the decedent's consciousness and suffering during the interval between injury and death can be critical, as defendants may argue the victim was unconscious and therefore could not have suffered.
Survival actions are typically filed alongside wrongful death actions in cases where a person's death results from another's negligence. The two claims are legally distinct and serve different purposes — the wrongful death claim compensates survivors for their losses, while the survival action compensates for what the deceased experienced. In some states, survival actions are limited in scope — for example, some states do not permit recovery for pre-death pain and suffering in a survival action. Calculating the combined value of both claims requires careful analysis of the applicable state law.