Are Pain and Suffering Damages Available in Wrongful Death Cases?
In some cases, it is possible to receive damages in a wrongful death case for pain and suffering, but not for your own. Instead, they can be awarded based on the pain and suffering that your deceased loved one experienced between the accident and their death. As a technical matter, this is called a survival claim rather than a wrongful death claim.
Survival actions and wrongful death claims are related, but different. In many cases, they can be filed in the same lawsuit. It is essential to work with an experienced New York wrongful death lawyer who can walk you through the options to determine which is right in your situation.
What is a survival action?
A survival action or survivorship claim is a legal cause of action that the deceased would have had the right to bring– the legal claim “survives” their death. It can include non-economic damages like pain and suffering and economic damages like medical and funeral bills and lost wages.
There must be evidence that the deceased experienced some cognitive awareness after the accident for a viable survival claim. This means that they did not die immediately but instead experienced conscious pain and suffering. In some cases, evidence that the deceased experienced terror just before a fatal accident will justify a survival claim.
The plaintiff in a survival action is the deceased person’s estate. The plaintiff in a wrongful death case is one or more heirs, who may or may not be beneficiaries of the estate. The same people may have the standing to file both– New York City personal injury lawyers can determine this.
What do pain and suffering include?
It includes physical pain as well as mental anguish, anxiety, depression, and loss of enjoyment. Some of these may not apply if the person died a short time after the accident– but if there was a delay between the injury and death, emotional losses could play a significant role.
Pain and suffering can be proven in different ways, depending on the circumstances. If the victim survived for days, weeks, or even longer, there can be ample evidence of their experience through medical records, eyewitness testimony, and perhaps even diaries.
If the death was relatively quick, proving conscious suffering may require eyewitness testimony or even the testimony of an expert witness who can explain the mechanics of the accident and what a person would typically experience during it. These are challenging issues to tackle, but our personal injury lawyers approach them with skill and sensitivity.
Calculating pain and suffering damages after a wrongful death
Pain and suffering are a type of non-economic damages. Unlike economic damages such as medical bills and funeral bills, pain and suffering are not easy to measure. However, even though it is subjective, it is still worthy of compensation.
The most common methods for measuring these damages are a multiplier method and per diem method. It helps to understand them and how insurance companies and defense lawyers minimize the value of them.
- Multiplier – The total economic damages, such as medical bills and funeral expenses, are multiplied by a number related to the accident’s type or severity. The number is typically between 1 and 5.
- Per diem – This method assigns a value for every day of suffering and then multiplies that by the number of days that the person lived after their accident.
Insurance companies may also use computer programs that calculate a value based on factors that an adjuster inputs. Under any of these methods, though, a skilled personal injury lawyer will advocate for a fair settlement value even when the defendant’s calculations fall short.
Schedule a free consultation with us
When pursuing a wrongful death or survival claim, it is important to work with an experienced New York attorney. At Douglas & London, we take on the fights of families seeking to hold at-fault parties accountable for the untimely loss of loved ones.
Statutes of limitations for both types of claims can be complex—so be sure to protect your rights by speaking with an attorney as soon as possible. Call us today to schedule a free, no-obligation consultation.