You’ve gotten the call that someone you love was in a terrible accident. Your husband, wife, child, or parent is in the hospital in critical condition. Your family member’s injuries are serious, and doctors don’t know if he or she will pull through. You allow yourself to hope as your loved one holds on for days or weeks. But eventually the news you’ve been dreading comes — your loved one has passed away from his or her injuries.
In addition to your grief over your loss, the stress of planning your loved one’s funeral, and try to perform the seemingly impossible task of going on with life without your family member, you’re now receiving stacks of hospital bills, doctor bills, emergency room bills, surgery bills, and hospital supply bills. There seems to be a bill for every little thing the hospital did while your loved one was under their care — and you’re left worrying how to pay for it all.
In Illinois, there’s a special provision of the law that addresses just that circumstance. It’s called the Survival Act, 755 ILCS 5/27-6, and is part of the larger Probate Act, 755 ILCS 5, addressing various legal issues after someone dies. The Survival Act allows for certain claims your loved one had the right to make before passing away to survive his or her death. Among the type of claims that survive are personal injury claims, meaning you may be able to make a claim on your loved one’s behalf for any damages he or she might have received in a personal injury lawsuit if your loved one had survived. However, Survival Act claims are only available when your loved one did not die immediately from his or her injuries.
What Is the Illinois Survival Act?
Under traditional common law principles, the right to sue for damages resulting from an accident disappeared upon the death of the victim. In practice, this led to extreme hardship for the relatives of the victim, who were often saddled with medical and funeral expenses for which they could not seek compensation.
In response to this injustice, the Illinois and other state legislatures passed laws such as the wrongful death act and the survival act.
The Illinois survival act allows the estate of a deceased person to recover damages that would have been available to the deceased person had he or she not died.
The Difference Between the Survival Act and the Wrongful Death Act
The survival and wrongful death acts both help the family members of deceased accident victims, but they are operationally distinct.
The wrongful death statute creates a cause of action for the decedent’s next of kin, who can sue an at-fault party for their own damages resulting from the death of their family member. These damages include the decedent’s contributions to household income, emotional support, companionship, and even education.
Unlike the wrongful death act, the survival statute does not create a cause of action. Instead, it preserves the deceased person’s cause of action until after death. To benefit from the survival act, the decedent’s family must set up an estate for the decedent.
A representative of the decedent’s estate can pursue a lawsuit on the decedent’s behalf for medical expenses, lost earnings, and pain and suffering experienced between the time of the accident and death. The decedent can also recover for funeral expenses. Damages from the decedent’s emotional distress, however, are not recoverable.
Simply put, the wrongful death act allows recovery of the family’s damages, while the survival statute allows recovery of the decedent’s damages.
Pursuing Recovery Through the Wrongful Death and Survival Acts
For full compensation, the decedent’s family members should seek to recover damages through both the wrongful death act and the survival act.
The wrongful death act allows the decedent’s immediate family members (those who would inherit from the decedent if he or she did not leave a will) to sue, while the survival act provides that only the decedent’s estate can bring suit.
Thus, the family of the deceased may need to set up an estate for the decedent if none existed at the time of death. Then, that estate’s representative would bring suit on the decedent’s behalf, and the damages would be awarded to the estate before being distributed to the survivors.
Under either the wrongful death or survival act, the survivors will need to prove that their relative’s death was wrongful, which in the context of auto accident involves a demonstration of the defendant’s negligence.
Do you have more questions about what do if a family member dies in an auto accident? Give the lawyers from Staver Accident Injury Lawyers, P.C. a call at (312) 236-2900 for a free consultation of your case.
What Kinds of Claims Survive Death?
There are a couple of types of personal injury claims that can be pursued under the Survival Act.
- Negligence — Negligence is when someone causes injury or damages by acting unreasonably or failing to act reasonably. Negligence often is at the heart of many auto collisions. When someone causes you injury by being negligent, the law says that you are entitled to compensation of your medical bills, pain and suffering, disfigurement and disability, lost income, and loss of normal life. If you had a loved one who was injured through the negligence of another person and didn’t immediately pass away, you may be able to recover some of those personal injury damages through an insurance settlement or a lawsuit.
- Medical Malpractice — Malpractice happens when a doctor harms someone by failing to provide care that meets the reasonable standard for that person’s illness or medical condition. Acts of malpractice may include failure to diagnose or misdiagnosis of a condition, failure to treat a condition, providing the wrong treatments or medications, or delaying treatment in an unreasonable manner. If your loved one died as the result of medical malpractice, you may be able to seek compensation for damages that your loved one would have been able to claim if he or she had lived.
Damages Available in Chicago Survival Actions
The damages available in survival actions are similar to the damages someone would seek in a personal injury lawsuit and are different than the monetary damages available in a wrongful death action. You may also be able to seek wrongful death damages in addition to survival action damages.
Typical damages in survival actions include:
- Medical Expenses — You may be able to get compensation for any medical bills your loved one accrued while he or she was still alive following the accident or act of medical malpractice that resulted in your family member’s injuries. You’ll have to be able to demonstrate that the medical expenses arose from injuries caused by the accident or malpractice.
- Other Personal Injury Damages — You may be able to get compensation for other personal injury damages your loved one might have been able to claim. That includes lost wages as a result of the accident or malpractice, loss of normal life, disability or disfigurement, and pain and suffering.
An experienced Chicago wrongful death attorney can review the circumstances of your loved one’s death and help determine whether you might have a successful claim for damages under the Survival Act. A lawyer who has handled numerous survival actions will be able to help you make a claim and either negotiate a settlement or file a lawsuit and argue to a jury that you deserve compensation for the injuries and damages your loved one suffered before he or she passed away.
