Survival actions are initiated much like any other civil claim. The initial investigation should determine who is at fault or, at a minimum, who else was involved in the incident. The investigation should also include some information regarding whether an estate needs to be opened, a determination as to who will serve as the administrator of the estate, and what other issues need to be resolved preliminary before the claim can progress. For assistance with these steps or for guidance through the legal process, call and schedule a consultation with a DC wrongful death lawyer today.
Survival action occurs while the person is still alive. It occurs on the death of the accident. The person who died accrued a cause of action before they died and that is a survival action. The death itself is on behalf of the legal representative of the estate. If someone gets in a car accident and they survive for three days in the hospital and then they die, they have a claim for survival for the conscious pain and suffering. If somebody is asleep and for whatever reason die instantly, there would be no claim for conscious pain and suffering and it would be strictly a wrongful death action, not a survival wrongful death action.
The representative of the estate is typically fixed by the statute. It is usually the spouse. If there is no spouse, it will be the parents. If there are no parents and no spouse, then it would be the children as their majority. If they are not of age, then it would go to the siblings. If there are no siblings, then the court would appoint a guardian for the minors. If there are no children, no siblings, no spouse, and no parents, then it would typically go a public administrator.
In cases where the person involved in the incident is deceased, an experienced attorney will utilize other evidence to establish liability. The facts of each case are completely different, and the facts of the case usually drive the nature of the investigation that produces the evidence necessary to establish liability.
For example, in a case where there is a surviving witness. It is incumbent upon the attorney to secure the witness and preserve the evidence that can be used to establish liability. Likewise, when there is no witness, the attorney may have to rely upon expert witnesses, such as an accident re-constructionist, to investigate the accident and opine as to who was at fault for the collision. Other times, the attorney may have to rely on different experts, such as a toxicologist or other law enforcement, in order to present the evidence necessary to establish liability.
Typically, survival actions are claims brought on behalf of the decedent by the personal representative of the estate. At the base of the claim is a negligence claim, which means that the personal representative must prove the elements of a negligence claim. The only additional issues are procedural in nature regarding the establishment of the estate and the personal representatives standing to bring the claim.
Duty is established really on a case by case basis. In some circumstances, there is a readily identifiable duty that is not required to be established through expert testimony. An example of a readily cognizable duty is the operation of a motor vehicle. It is commonly known that each driver owes another a duty of care to operate his/her motor vehicle in a safe and prudent manner.
Conversely, in medical malpractice claims, the court requires the injured person to present expert testimony regarding the appropriate standard of care. This means that the duty owed by the physician to the patient must be explained by expert testimony. Thus, establishing the duty owed really depends on the nature of the claim.
Once liability is established or accepted by the responsible party, then the focus of the claim turns to damages. At that point, it is imperative that all the necessary steps are taken to properly and adequately consider all of the affected parties and the elements of damages of a survival case in DC so that both the attorney and his client can fully appreciate the issues that need to be resolved and present them in an effective way.
There are a lot of factors that go into deciding whether a case is resolved through a trial or through a private mediation. The ultimate decision really depends upon the wishes of the parties involved. Some people may want to resolve the claim quickly, in a cost-efficient manner. Therefore, a private mediation may seem like an attractive option. Others may be skeptical of a private mediation setting and prefer to have their claim resolved through a court where public record is created. Likewise, the person can have their day in court.
Generally speaking, any number of factors can go into evaluating and deciding whether to resolve a claim through a private mediation versus through court.
Survival claims are typically handled hand in hand with wrongful death claims. They are brought typically together through the same pleading and typically take the same amount of time to resolve because they are typically handled at the same time.
Typically speaking, the complexity of the claim will determine the length of time it takes to resolve the survival action. For example, a decedent that has incurred significant medical bills may take longer to process the claim simply because it will take time to collect the records.
Likewise, if an expert witness is required to investigate the incident to determine whether there was any conscious pain and suffering by the decedent, then that claim may take longer to complete. No two claims are ever the same, and the nature of the incident will likely determine the length of time it takes to complete.
In the survival action process, a person gets an attorney. The attorney conducts an investigation and then they will attempt to settle the case pre-suit. If they cannot settle pre-suit, they will go to court. If they go to court, they file the lawsuit and the lawsuit goes to court. The defendants will answer afterward and once the case gets answered, they have to engage in paper discovery then there are depositions. Afterwards, there is a pre-trial conference. After the pre-trial conference, the case proceeds to trial and that process usually takes 18 to 24 months.
