WRONGFUL DEATH & SURVIVAL ACTION

Wrongful death is a term used to define the type of action brought by the executor or administrator of a decedent's estate to recover for the negligence or wrongful acts of another, which caused the decedent's death. A wrongful death claim is statutory in South Carolina.  Codified in S.C. 15-51-10 through 60, the aim of the wrongful death statute is to compensate the survivors and beneficiaries of a deceased for their loss.  This is normally the husband and/or wife, and/or children of the deceased.  If there is no spouse and no children, then the parents of the deceased may bring a claim for wrongful death.  The wrongful death statute requires the proponent to prove that another's negligence or wrongful act proximatley caused the death of the decedent. Generally, damages recoved in a wrongful death claim include lost earnings, medical expenses, funeral and burial costs, and any support based loss, such as medical insurance and/or pension benefits.  

SURVIVAL ACTION

The South Carolina survival statute provides that a cause of action for injuries to a person shall survive the person's death, with damages recoverable by the legal representative of the deceased. S.C. Code Ann. § 15-5-90.  Under a survival action the estate of the decedent is entitled to damages that occurred prior to death. Therefore, the test for a survival action in South Carolina is whether or not the decedent suffered any pain or suffering prior to death. Damages in a survival action include recovery for the decedent's conscious pain and suffering, emotional distress, and medical expenses. See generally Baker v. Sanders, 301 S.C. 170, 391 S.E.2d 229 (1990) (ruling that the Tort Claims Act does not preclude a survival action for conscious pain and suffering and medical expenses when an injured person later dies as a result of the tort). In addition, § 15-5-100 authorizes recovery for funeral expenses. S.C. Code Ann. § 15-5-100 (1976). 

TYPES OF CLAIMS

Wrongful death and survival claims may arise under any number of circumstances.  The two claims may be claimed together or separately depending on the facts. Generally, most wrongful death claims arise in relation to product defect claims, nursing home negligence, car accident claims, and medical malpractice claims for misdiagnosis and delayed diagnosis.  On average there are nearly 80,000 deaths in the United States each year due to medical malpractice.  According to the Naitonal Highway Traffic Safety Administration, the number of fatal car and other vehicle crashes in 2011 was 32,367.  

About the Author: Milton D. Stratos is a seasoned wrongful death attonrey, prouldy serving client's in South Carolina.