Survival Action | Wrongful Death | Wrongful Birth Flashcards
What is a Survival Action?
A Survival action is survival of a tort action. It is the continuation of a tort action after death. Survival action is statute that allows a decedent’s estate to sue for injuries or damages suffered by the decedent immediately before he died.
At common law, a cause of action in tort was extinguished at the death of either the plaintiff or defendant. Survival statues reverse common law and allow a cause of action in tort to survive the death of the parties.
How do parties proceed within a Survival Action?
Parties proceed as if all parties were alive
How are awards handled within a Survival Action?
Awards come from or into the decedent’s estate (and) are subject to creditors
What defenses apply within a Survival Action?
All defenses apply - except intrafamily immunity (the legal doctrine prohibiting one family member from suing another family member for personal injury) as the relationship was terminated at death.
What is a Wrongful Death action?
Wrongful death law applies in tort cases in which the defendant’s conduct has resulted in the death of the victim, leaving behind surviving family members and dependents who will suffer as a result of the victim’s absence. The purpose of these laws is to compensate the survivors, not the deceased victim.
A Wrongful death action grants recovery for pecuniary injury resulting to the spouse or other beneficiaries defined by statute.
To what classes does a Wrongful Death action give priority (in order of priority)?
1) Spouse and Minor Children 2) Adult Children 3) Siblings and Parents
Within a Wrongful Death action, do decedent’s creditors have any claim against amount awarded?
No. Unlike a Survival Action, creditors have no claim against award.
Within a Wrongful Death action, what recovery is allowed?
1) Loss of support 2) Loss Of Companionship/Consortium
Within a Wrongful Death action, what recovery is not allowed?
No recovery is allowed for Pain and Suffering of decedent
What is a Wrongful Birth action?
A Wrongful birth action occurs where the defendant denies a mother the choice to abort and thus obligates the child to a wrongful life.
This normally applies to the parent or parents of a child who was born with severe medical ailments and as a result sues the healthcare professional or hospital under a claim that that the defendant either misdiagnosed or failed to properly warn of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities.
Is Wrongful Birth similar to a breach of Duty of Informed Consent?
Yes. In as much as informed consent is the process in which a health care provider educates a patient about the risks, benefits, and alternatives of a given procedure or intervention, it allows the patient to be competent enough to make a voluntary decision about whether to undergo a procedure or intervention - in this case, whether or not to undergo an abortion.
What is the difference between Wrongful death and Survival action?
A wrongful death lawsuit is brought on behalf of the spouse, parents or children. In contrast, a survival action is brought on behalf of the deceased person by the personal representative of the estate.
Within a Survival action, what tort actions survive?
Torts to property and torts resulting from personal injury (except torts invading intangible personal interest such as defamation, invasion of right to privacy, and malicious prosecution).
