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Survival Claims: Pain and Mental Anguish

Personal injury claims that follow a person after their death are called “survival claims.” Because a person’s estate is still responsible for the bills associated with their injuries before death, this is one of the reasons that offenders are still responsible for their negligence after the decedent’s (deceased person’s) death.

One type of compensation that the decedent’s estate can receive is for pain and mental anguish. This is for the pain and/or mental anguish that the deceased person suffered before their death. This is different from the wrongful death claim, where the family members of the deceased can receive compensation for their own pain and suffering.

How to Establish a Case for Pain and Mental Anguish

In order to establish a case for your loved one that suffered from pain and mental anguish, you (or whoever is the representative of their estate) must first establish that the decedent did in fact have a personal injury claim before their death. If the four elements for a survival claim can be met, you have made the first step toward establishing your case. Here are the four elements of a survival claim:

  1. You are the heir or legal representative of the decedent’s estate
  2. The decedent had a cause of action for the personal injuries they suffered before they died
  3. The decedent would have been able to bring a personal injury claim had they survived the defendant’s wrongful conduct
  4. The defendant’s negligent actions caused the injuries that resulted in the decedent’s death.

Once these four elements are established, you have a survival claim. At this point, you and your attorney will decide what damages should be recovered; this depends on how the decedent was injured, and what he or she had to suffer through before passing away.

No court can repay your loved one for their loss of life, but in order to prevent another injury and/or death from happening to someone else, it is important to make sure that those responsible for negligence have to pay for it. The next step to take is determining whether or not the decedent suffered pain or mental anguish from their injuries.

Determining the Amount of Suffering

No one wants their loved one to be aware of their own impending death, but a difficult truth to face is that pain and suffering will unfortunately sometimes accompany someone else’s wrongful act. In some cases, it may seem challenging to determine whether or not there was suffering before death, but there are some general guidelines that will hopefully clarify how this will be viewed by a court.

  • The evidence for pain can be shown by any amount of awareness of physical deterioration experienced before death. If someone was coughing or gasping for breath, being treated for any broken bones or internal injuries, or generally exhibiting characteristics of someone under distress, it is likely that they experienced pain and that you’d have good evidence to support their claim.
  • Mental anguish in a survival claim is different than mental anguish in a wrongful death case because of who suffered. In a wrongful death case, you may file mental anguish for what you’ve suffered because of your loved one’s death. In a survival claim, the mental anguish is what the deceased actually suffered before their death. Though this may sound hard to determine, there is really only one major point to consider. If the decedent died instantly in their accident and had no idea that the incident was going to occur, you may not be able to file for mental anguish. However, if the decedent had any knowledge of their imminent injury or death, were conscious before killed (such as watching as your car hurtles off the road into a ditch or falling from a significant height), or survived the accident for a period of time before death, there is probably a claim for the decedent’s mental anguish.

Seeking Legal Assistance

Even if you’re unsure what exactly happened at the scene of an accident, if there are any questions or missing pieces, it is a good idea to consult a lawyer or investigator to uncover the facts. We understand that you and your family need time to grieve the loss of your loved one, which is one reason we offer free investigations as part of our process. In some cases it is important to uncover facts as soon as possible after an accident. Our attorneys will review medical and police reports, eyewitness testimonies, and any other pieces of evidence that we are able to uncover to make sure this information is accurate. If we discover that your loved one did suffer from pain and/or mental anguish before death, we will then let you and your family know of our findings. At this point, you’ll be able to decide whether or not you want to file a claim. If not, you never pay us anything for our work. If you have any more questions about your claim or our filing process, give us a call at (855) 326-0000.

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Call us anytime toll Free 1-855-326-0000