New Mexico Medical Malpractice Attorneys Curtis & Co.

What is a survival action?

Most in Albuquerque likely associate wrongful death lawsuits with action taken by a deceased person's representatives against those whose negligent actions contributed to one's death. Yet what about cases where your loved one was injured, yet did not immediately die (or later died from causes that might have only been loosely related to the injuries caused by an earlier incident)? Are you then allowed to bring action for the damages and losses your family member or friend incurred? 

You are, but not necessarily in the form of a wrongful death lawsuit. Any action that you take would be classified as survival action. The U.S. Tenth Circuit Court of Appeals (which has jurisdiction over Albuquerque) described survival actions best in a 2006 ruling: "personal injury claims arising from negligence survive the death of the would-be plaintiff." What this means is that if your loved one had a cause of action to pursue a liability claim while they were still alive, that cause of action remains valid even after their death. 

Say that you loved one was severely injured in a car accident, yet their injuries did not kill them. a short while later, however, they contract an illness and die. While they may have intended to commence a lawsuit, they never were able to. You can initiate the lawsuit on their behalf, collecting whatever damages they may have been entitled to if they were still alive. This highlights the main difference between survival actions and wrongful death lawsuits. Only damages for pain and suffering can be awarded in a wrongful death matter, while punitive damages meant to replace a decedent's lost wages can be given in a survival action. The award is meant for the decedent (and thus given to their estate) rather than for surviving family members. 

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Albuquerque, NM 87102

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