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Differences Between Survival Action and Wrongful Death

August 23, 2021Wrongful Death

When someone is killed as the result of negligence, carelessness, or an intentional wrongful act in Missouri, there are two types of lawsuits that can be brought against the liable party. Those include a survival action and a wrongful death lawsuit.

What Is a Wrongful Death Claim?  

If you have lost a loved one in a preventable accident caused by someone’s carelessness, a wrongful death lawsuit can be pursued to hold the negligent party accountable. Wrongful death damages are meant to compensate the surviving family for their losses related to losing their loved one, rather than for the deceased’s losses. 

Missouri law allows the surviving family to bring a claim in the following order: 

  1. Surviving Spouse
  2. Children
  3. Parents of the Deceased
  4. Siblings
  5. Children of the Deceased’s Siblings
  6. Grandparents

Only one wrongful death lawsuit can be filed.

What Is a Survival Action? 

In contrast, survivorship claims in Missouri are designed to compensate surviving family members for the losses their loved one suffered prior to their death. Essentially, if the victim had survived, they would have had the right to pursue a personal injury lawsuit. Therefore surviving family members have the right to file a survival action. Survival actions may only be brought if the deceased did not die immediately from their injuries. However, the law only requires a short period of survival. 

Unlike some states, when both wrongful death and survival actions arise from the same occurrence, they can be consolidated into one lawsuit in Missouri.

Available Damages 

One of the most significant differences between a survival action and a wrongful death claim is the type of damages available. 

Wrongful Death Compensation

Damages in a wrongful death lawsuit may include:

  • Loss of financial support;
  • Loss of services;
  • Funeral and burial expenses;
  • Loss of companionship, comfort, assistance, and affection;
  • Loss of sexual relations; and
  • Loss of the decedent’s training and guidance.

Survival Action Compensation

Whereas the damages awarded in a survival action can include, but are not limited to:

  • Accident-related medical expenses accrued before death.
  • Lost income up until death.
  • Conscious pain and suffering, and emotional distress the deceased experienced between the time of the incident and the time of death.

Conscious pain and suffering can refer to the physical pain suffered, as well as feelings of fear since the deceased knew their death was imminent. Before determining an award amount for this type of damages, jurors will consider: 

  • The nature, duration, and extent of the victim’s physical pain and suffering;
  • The victim’s mental anguish, apprehension, discomfort, or sorrow.

Missouri has not established damage caps for wrongful death or survivorship claims unless the death was caused by medical malpractice. In which case, the state’s limit of $700,000 for non-economic damages (e.g., pain and suffering) will apply. 

Statute of Limitations

In Missouri, the family of a wrongful death victim has to bring a wrongful death case and/or survival within three years. However, in cases that involve medical mistakes made by medical professionals, the statute of limitations is two years. After this time frame, claims are dismissed, and the family cannot recover compensation. In cases where the cause of death has yet to be determined, the time frame for filing can be altered due to the discovery rule.

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