There can be two (2) separate claims against a person or corporation who negligently causes a death:
– A “wrongful death” claim which belongs to survivors designated by statute, and
– A “survival action” which belongs to the estate and is brought by the executor or administrator of the deceased for pain and suffering before death, medical expense and funeral expense.
You may pursue both claims, or file one claim and abandon the other. Which claim(s) to file is typically a strategic legal decision.
The measure of damages for wrongful death is the full value of the life of the deceased, from the perspective of the decedent. What does “full value” mean? It is both economic damages and intangible factors such as the enjoyment of the experience of living. The “full value of the life” is determined by the enlightened conscience of an impartial jury. In Georgia, there is no magic formula on damages awarded in a wrongful death case. This differs from other states in the Country. Valuation of a wrongful death claim, the “full value”, is affected by many factors, including but not limited to: disputed issues of liability, contributory negligence comparative negligence, assumption of risk, proximate causation and insurance coverage considerations,
Survival action is separate from the wrongful death claim on behalf of designated beneficiaries. Punitive damages may be awarded in connection with such a survival action on behalf of the estate.
When the decendent died within a very short time, medical liens are often a major factor in deciding what claims to include in a lawsuit. If there is limited insurance coverage and medical liens (by hospitals, doctors, insurers, Medicare, Medicaid or Tricare), survivors may decide to pursue only the wrongful death claim which is not subject to such liens. If liability insurance is ample and liens are light, however, it may be worthwhile to include the estate’s claims. Where the decedent died within a very short time, a claim for the mental pain of recognizing impending death may have great value. Expert witnesses are typically consulted to assist establishing how much time the person had to recognize impending death before their ultimate demise.