The death of a loved one is always heartbreaking, but it is even more painful if someone else’s actions lead to their death. Regardless of whether your loved one died due to a motor vehicle accident, medical malpractice, defective products, or an offshore accident, their unexpected and untimely demise is more difficult to bear if their death was preventable. For this reason, surviving family members in Louisiana have the right to seek legal recourse by filing wrongful death claims or survival actions. To do this, family members should understand what wrongful death and survival action claims are and whether the two have any differences.
The Difference Between Wrongful Death and Survival Action
Wrongful Death Claims
A wrongful death is a death that occurs due to someone else’s wrongdoing or negligence. Louisiana state law notes that wrongful death happens when “a person dies due to the fault of another.”
For example, if a speeding driver loses control of their vehicle and hits a pedestrian who instantly passes away, such a death is considered a wrongful death. It happened due to the driver’s negligent behavior — speeding. Businesses, companies, and government agencies may also be responsible for wrongful deaths.
Wrongful death suits in Louisiana are filed on behalf of a decedent to compensate the surviving family members. Such claims must be filed within a year following the victim’s death. However, it’s important to note that not everyone can file a wrongful death claim. State law allows certain surviving family members to file such lawsuits, including:
- The spouse
- Children of the deceased
- Parents of the deceased, if there is no surviving spouse or children
- Siblings of the deceased, if there is no surviving spouse, children, or parents
- Grandfathers and grandmothers of the deceased, if there is no spouse, children, parents, or siblings
The relationship between the deceased and survivors need not be biological. Adoption also creates the same legal relationship between surviving family members and the deceased. However, if the deceased’s parents abandoned them as a minor, the parents aren’t allowed to file a wrongful death claim.
Survival Action Claims
A survival action claim, on the other hand, is a claim brought on behalf of the victim to compensate for damages suffered by the victim before their death. If the victim survived for some time before their death, they may have endured pain and suffering before succumbing due to their injuries or illness. Unlike wrongful death claims that revolve around what the surviving family members lost due to their loved one’s death, survival action centers around what happened when the victim was still alive.
For instance, if a victim suffers debilitating physical pain after an amputation due to a car crash, surviving family members may file a claim to recover damages due to the pain and suffering the victim endured. They may sue the defendant and their insurance company for pain and suffering damages.
While these two claims are similar, survival actions are personal injury claims that typically consist of damages to which the deceased would have been entitled if they had survived. Surviving family members, including the spouse, children, parents, siblings, or grandparents, can bring these claims. In addition, the deceased’s succession representative also has the right to file a survival action to recover damages in the absence of surviving family members.
General Standards for a Wrongful Death Claim
Every wrongful death that occurs in Louisiana is unique. However, there are general standards that are required to prove every wrongful death case. Proving these standards guarantees surviving family members compensation for damages brought about by the death of their loved one, and they include:
- A death occurred due to an incident such as an auto accident, a slip-and-fall accident, or medical malpractice.
- There is proof that the defendant’s negligence or wrongdoing led to the death of a victim. For example, if a defective medical product caused an injury that led to death, surviving family members may file a claim against the manufacturer to recover damages. Evidence in wrongful death claims must have a direct correlation to the victim’s death.
- Their death led to losses and damages.
To prove these standards, survivors must provide concrete evidence and witness testimonies to convince the court that wrongful death happened. More importantly, to qualify to file a claim, survivors must file their claim before the statute of limitations runs out — one year in the case of Louisiana.
Damages Available in Wrongful Death and Survival Action Claims
Even though money can’t bring back a loved one, it can financially help family members left behind by the deceased. Still, in order to receive compensation, plaintiffs must clearly define their relationship to the deceased. Typically, surviving family members may receive compensation for damages that include:
- Compensation for financial support
- Funeral and burial expenses
- Loss of parental or spousal companionship, guidance, and love
- Loss of inheritance
- Loss of household services
- Mental anguish
In a survival action, if successful, surviving family members may recover compensation related to the deceased’s injuries until their time of death, including:
- Pre-death medical expenses
- The deceased’s pain and suffering
- Lost wages from the time of the accident until their death
- Compensation for loss of earnings the deceased would have earned had they survived
Survival actions generally carry substantial benefits if the time difference between injury and death is fairly significant. For example, if a victim dies a week after an accident, damages for a survival action claim won’t amount to much compared to if they passed away five months after the incident.
It’s also important to note that Louisiana has no universal cap on wrongful death claims. The only set cap that exists in the state applies to medical malpractice claims and lawsuits against government agencies. In these cases, survivors can’t recover more than $500,000.
In rare cases, courts may award punitive damages in wrongful death lawsuits. These damages are awarded at the court’s discretion for behavior that’s considered extremely reckless. For example, if the defendant was drunk driving and speeding, leading to them blacking out and causing a head-on collision, a judge may award punitive damages to the deceased’s family. Punitive damages aren’t compensatory; they aim to punish the defendant for their grossly negligent or intentional conduct.
Surviving family members should understand their rights and whether they qualify to file a wrongful death or survival action claim after the tragic death of a loved one. This ensures they recover maximum damages following a wrongful death incident. In closing, they should also keep in mind Louisiana’s short statute of limitations when bringing wrongful death or survival action claims.
- Wrongful Death Action. Louisiana State Legislature. Accessed on July 20, 2023.
- Edna Tajonera, et al. Versus Black Elk Energy Offshore Operations, L.L.C., et al. U.S. Government Publishing Office. Accessed on July 20, 2023.
- Survival Action. Louisiana State Legislature. Accessed on July 20, 2023.