Wrongful Death Damages or a Survival Action? What to Plead?

In Florida injury cases where the victim has died, the Plaintiff must select to pursue a wrongful death claim or survival damages.

The Difference Between Wrongful Death Damages and Survival Damages

Wrongful Death

The survivors of the decedent can claim their pain and suffering associated with losing their loved one. To accomplish this, the Plaintiff must prove that the injury contributed to the wrongful death. Ex: If a nursing home resident suffers a fall, hits their head and then dies of a subdural hematoma hours later, this brain bleed clearly contributed to their mortality.

Survival Action

The decedent’s estate has a personal injury claim for the pain and suffering of the decedent from the time of injury until the time of death. This means the injury can be totally unrelated to the death. Ex: If a person is hit by a car and has a herniated disc injury, treats for 8 months, but then dies of an unrelated heart attack, his/her estate can claim damages for the 8 month time period from the date of injury until the date of the unrelated death.

How Do I Know if I Have a Wrongful Death Claim or a Survival Action?

Usually, relating the injury to the wrongful death will depend on expert analysis. This is typically done by a doctor. Below are some cases we’ve handled where the treating physician linked the injury to the subsequent death, thereby making the case a wrongful death claim.

Nursing home resident develops a bad bedsore, then the wound gets infected and they die 6 months later. The death certificate did not list the bedsore as the cause of death, however, sepsis (bodywide infection) was listed as one of the causes of death. The infection came from the bedsore, so the wrongful death was linked to the original injury.
Pedestrian involved in a Boca Raton car crash injury suffered a dislocated shoulder from the trauma. He then had surgery 7 months after the accident, but tragically had a heart attack following the surgery. Our treating doctor related the cardiac arrest to the surgery, which was caused by the original injury, and the case therefore was for wrongful death.
A bicyclist was hit by a car in Palm Beach County, which activated a latent auto-immune disorder. He later died that year of the recently activated auto-immune disorder.

When Do I Need to Establish Wrongful Death vs. Survival Action?

Luckily, Florida courts have been liberal in interpreting the requirement of choosing a wrongful death or survival claim. The case law on the issue is clear that a Plaintiff can plead both in the alternative, and select whether to claim wrongful death damages at the time of trial.

Relevant Florida Case Law on Wrongful Death vs. Survival Claims

It is not uncommon for a plaintiff in a lawsuit to be uncertain whether the alleged personal injury resulted in death. For example, an older person who suffers an injury in a nursing home may die several years later under circumstances that do not clearly establish whether the initial injury resulted in the death. When this issue is unresolved, the law permits a plaintiff to allege alternative theories. See Smith v. Lusk, 356 So.2d 1309 (Fla. 2d DCA 1978); Poole v. Tallahassee Mem’l Hosp., Med. Ctr., Inc., 520 So.2d 627 (Fla. 1st DCA 1988). A party is permitted to plead both a personal injury survival action and an alternative wrongful death action if the cause of death is uncertain. Whereas Capone expressly states that a wrongful death action “cannot be brought as an amendment to a personal injury action,” Niemi allows a plaintiff to amend a complaint for personal injuries to state alternative wrongful death and survival claims. Capone, 56 So.3d at 36; Niemi, 862 So.2d at 34.

Florida’s Wrongful Death Act versus Florida’s Survival Statute

Florida’s Survival Statute^[5] provides: “No cause of action dies with the person. All causes of action survive and may be commenced, prosecuted and defended in the name of the person prescribed by law.” Under this statute, “the representative recovers only such damages as were suffered by his decedent.” Stokes v. Liberty Mut. Ins. Co., 213 So.2d 695, 697 (Fla.1968).

In 1973, the Florida Legislature enacted Florida’s Wrongful Death Act to limit the application of the Survival Statute to the extent that an action for personal injuries resulting in death, previously maintainable by a decedent’s personal representative under the survival statute, now abates, and the personal representative must instead file a wrongful death action. See Fla. Stat. §§ 768.16-768.26. “In merging the two prior actions, the legislature 1219 *1219 transferred the items of damage for loss of earnings, medical expenses, and funeral expenses from the survival statute to the new Wrongful Death Act.” Martin v. United Sec. Servs., Inc., 314 So.2d 765, 769 (Fla.1975); Knowles v. Beverly Enter.-Fla., Inc., 898 So.2d 1, 9 (Fla.2004) (“Damages are limited to the survivor’s loss of support and services, companionship, and his or her own pain and suffering. The estate may also recover loss of earnings of the deceased and medical and funeral expenses.”) (citation omitted); Fla. Stat. § 768.21. The Wrongful Death Act allows the personal representative of an estate “to recover for (1) loss of past and future support and services; (2) loss of companionship; and (3) his or her own mental pain and suffering from the date of the injury.” In re Air Crash on Dec. 20, 1995 Near Cali, Colombia, No. 96-MD-1125, et al., 1998 WL 1770590, *2 (S.D.Fla.1998) (emphasis in original). Additionally, the personal representative may seek punitive damages in wrongful death cases. Martin, 314 So.2d at 771.

In pertinent part, the Wrongful Death Act provides: “When a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate.” Fla. Stat. § 768.20; see Martin, 314 So.2d at 770. “However, the survival statute is still applicable to preserve other actions which the decedent may have brought or was bringing prior to his death,” including personal injury actions, in which the personal injury is not also the cause of death. Id. at 770 n. 18. The Act provides a right of action “[w]hen the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued….” Fla. Stat. § 768.19.

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