Most people are familiar with the concept of wrongful death lawsuits. In New Mexico, the executor of an individual’s estate has the right to bring a wrongful death lawsuit when the individual has died due to fault or negligence by another person or entity.
Wrongful death claims focus on the damages sustained by the loved ones of the deceased, including outstanding medical bills, pain, and suffering, and lost income as a result of their loved one’s death.
Wrongful death claims must be filed within three years of the action that led to the decedent’s passing.
What is a “survival action”?
Survival actions are different from wrongful death claims in that they focus on the suffering of the decedent and the damages they could have received if they had survived. In essence, it’s the civil claim the decedent could file if they were still alive.
If the deceased already filed a lawsuit for personal injury but did not live to see the outcome of the case, the executor may continue the claim to collect damages. In other words, the passing of an individual does not grant the negligent party immunity from their actions. They can still be sued.
What types of damages can be collected from a survival action?
Survival actions can seek to obtain damages related to the injury the deceased suffered. For example, if the individual incurred medical bills due to their injury, the estate may sue the negligent party to recover those costs.
Depending on how long the individual lived following their injury, it may be possible to recover the value of lost income and their pain and suffering. However, lost income may not be a viable claim if the person died within hours of their injury. It’s also possible to collect damages related to funeral expenses and lost property in a survival action claim.
Personal injury claims filed by the deceased before their death may be continued by the executor of their estate. Any damages awarded that the deceased would have been entitled to will be added to the value of their estate and distributed to their heirs according to their wishes.
When is a survival action viable?
A survival action is a viable alternative whenever a deceased person suffered an injury due to the fault or negligence of another party or entity. If the deceased filed a personal injury lawsuit before their death, the executor of the estate can continue the claim.
Suppose the deceased did not file a personal injury lawsuit before their death. In that case, the executor may file one on their behalf to collect damages to pay for the decedent’s medical bills, pain and suffering, and lost income.
However, unlike a wrongful death action, survivors cannot claim damages related to their own pain and suffering.
Additionally, survivors cannot collect damages related to loss of consortium or parental guidance under a survival action claim.
Should I file a survival action claim?
If your relative sustained a personal injury that was unrelated to their death, you might be able to file a survival action claim. In New Mexico, survival actions are allowed when there is a cause to pursue a liability claim. The passing away of the plaintiff does not give the defendant immunity from a survival action claim.
Do you need help with a survival action claim?
At Hunt Law, we handle cases related to medical malpractice, wrongful death, catastrophic injury, and personal injury. Our practice serves the Northern New Mexico area, including Santa Fe, Albuquerque, Rio Rancho, Raton, Roswell, Los Alamos, and Las Vegas.
Schedule a consultation with us today to find out whether you have a viable survival action claim.