When someone survives their injuries due to another person’s negligence, chances are they may file an injury case against the responsible party.
However, some victims may die before they can seek compensation, leaving families emotionally and financially devastated.
By filing a survival action claim in California, the head of the victim’s estate can pursue the compensation owed to the victim before their death on their behalf. Our experienced California wrongful death lawyers will explain.
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In California, a survival action is any personal injury claim that the deceased filed or could have filed before their death. In many cases, the survival action will relate to the accident that caused the person’s death, but not necessarily.
For example, someone may suffer injuries in a non-fatal car accident and then die of an unrelated heart attack a year later before they have a chance to seek compensation for the car accident. A survival action would allow their estate to collect damages they would have been able to seek from the car accident if they had lived.
Under CCP 377.30, the representative of the deceased’s estate may file a survival action.
In many cases, this representative is a successor-in-interest named in the deceased’s will or trust. While this is sometimes a family member of the deceased, it may also be a close friend, lawyer, or financial manager.
However, survival actions may only be filed if the deceased didn’t immediately die from their injuries.
Learn How We Can Assist You Today Contact UsUnder California Law, a survival action allows the estate to seek compensation for the deceased’s injuries. CCP 377.34 states that the representative may pursue economic, non-economic, and punitive damages sustained by the deceased before their death.
There are several economic damages that a representative may pursue in a survival action, including but not limited to:
Non-economic losses, such as disfigurement, loss of quality of life, or pain and suffering, are now recoverable as well. California enacted a new law that went into effect on January 1, 2022, allowing plaintiffs to seek damages for the decedent’s pre-death general damages. These damages were previously unavailable in a survival action.
It’s important to note that the law is set to expire on January 1, 2026. The California Legislature might reassess the bill at that time. Any plaintiffs who recover non-economic damages in a survival action during this time will need to report their awards to the Judicial Council. The Judicial Council is compiling the information and reporting back to the California Legislature.
The change in law affects many types of personal injury claims, including medical malpractice. However, survival actions involving medical malpractice will still be subject to the general damages cap. Under California’s Medical Injury Compensation Reform Act (MICRA), the limit has been $250,000 since 1975. Starting in 2023, the cap for non-economic damages will increase annually.
For wrongful death medical malpractice survival actions, the non-economic damages cap will be $500,000 and increase over the next 10 years to reach $1 million. After that, the cap will go up 2% annually to account for inflation.
Depending on the nature of the incident, the court may decide to award punitive damages as well. However, this is only in cases where the defendant showed a willful, reckless disregard for the safety or rights of others.
