Few events are more devastating than losing a loved one because someone else was negligent, reckless, or malicious. It doesn’t matter whether they were your spouse, child, or parent: the loss is painful, intense, and can affect you for the rest of your life.
If this happens to you, then New York law allows you to seek compensation and financial damages for your loss by filing a wrongful death and/or survival action lawsuit.
What is a wrongful action lawsuit?
When someone dies in New York as the result of a third party’s negligence or malice, the personal representative of their estate can file a wrongful death lawsuit, provided they take action within two years. Compensable damages include:
- Funeral costs
- Loss of income
- Loss of consortium (e.g., children no longer have a parent to raise them and/or one spouse is now alone)
Your personal injury attorney will help you, as your loved one’s personal representative, prove that:
- The person’s death was caused by the actions or omissions of the other party
- If the victim had not died, then they could have filed a personal injury claim
- Others suffered damages because they died
- Their estate is entitled to recover those damages
In general, compensation received after a successful wrongful death suit is paid directly to surviving heirs. It can’t be claimed by insurance providers and other parties seeking reimbursement for paid-out expenses.
What is a survival action?
Survival actions are filed on behalf of the deceased person. They are usually initiated if the party survived for a brief time after the incident. Laws governing these actions allow you to pursue damages that the decedent could have received had they not died. They include:
- Lost earnings
- Pain and suffering
You will have to generally prove the same conditions referenced in the wrongful death section above, but include:
- Proof that the victim incurred medical expenses prior to death
- Evidence of pain and suffering between the time they were injured and the time of their passing
If the suit is successful, then damages are paid into the person’s estate and distributed among their heirs. Still, unlike compensation in a wrongful death suit, the money may not be shielded from claimants like insurance companies.
Can you file both?
Although survivors typically have to file one or the other, both a wrongful death lawsuit and a survival action may be justified in cases where the victim enters an extended coma after the incident before finally passing away.
If you’re not sure which action to file, then an experienced personal injury attorney will explain how the law applies to your case and help you pursue a claim that maximizes your financial recovery.
If you have questions about a wrongful death or survival action lawsuit, then contact the law office of Jayson Lutzky, P.C. Call 718-329-9500 to set up a free in-person appointment. Mr. Lutzky is a Bronx, New York lawyer who handles accident and personal injury cases. Visit www.MyNewYorkCityLawyer.com to learn more.