When a loved one dies after being injured by another person’s negligence, determining the right legal claim can be more complicated than it first appears. Losing someone you love after an unexpected injury can leave you dealing with grief while also trying to understand what happened and what legal rights remain.
It can be especially difficult when it is not immediately clear whether the injury contributed to your loved one’s death. Virginia law recognizes both survivorship actions and wrongful death claims, but they serve different purposes and apply in different circumstances.
The key question is whether the negligent act caused the death or whether the injured person’s claim continued after death for reasons unrelated to the fatal event. This distinction can affect who may recover compensation, what damages may be available, and how the claim should be pursued. When it is unclear whether the negligence caused your loved one’s death, both types of claims may need to be considered as more information becomes available.
At Forbes Law Firm based in Hampton Roads, Virginia, I can review the circumstances surrounding your loved one’s injury and death, assess the available evidence, and determine which legal claims may apply. I can also help you understand your rights and pursue compensation available under Virginia law. Reach out now to schedule a free consultation.
A survivorship action allows a personal injury claim to continue after the injured person dies. Under Virginia law, most legal claims survive the death of the person who held them, so the decedent’s (the deceased person) personal representative can continue the claim on behalf of the estate.
This can apply in situations such as:
The injury did not cause the death: For example, a person is injured in a car accident and has a personal injury claim pending when they later die from an unrelated illness. The claim does not end with their death. Their personal representative can continue pursuing it.
The evidence does not establish that the injury caused the death: In some cases, a person suffers an injury caused by negligence but later dies, and the evidence does not establish that the injury caused the death. Virginia courts have allowed damages for the harm the person suffered before death in these circumstances.
Damages in a survivorship action may include medical expenses, lost wages, and pain and suffering the decedent experienced before death. Any recovery becomes part of the estate and is distributed according to the applicable estate and inheritance laws.
A wrongful death claim applies when another person’s wrongful act, neglect, or default causes someone’s death. Unlike a survivorship action, a wrongful death claim is based on the loss caused by the person’s death.
The claim is filed by the decedent’s personal representative, but any recovery is distributed to the people Virginia law identifies as beneficiaries. It generally gives priority to:
The surviving spouse, children, and grandchildren of deceased children
Certain parents who received qualifying support or services from the deceased
Parents, siblings, and certain dependent relatives when there are no surviving spouse, children, or grandchildren
Other beneficiaries who may qualify under Virginia law, depending on the circumstances
The damages also differ from those in a survivorship action. Instead of compensating the decedent for injuries suffered before death, wrongful death damages address the losses experienced by eligible beneficiaries.
Depending on the circumstances, compensation may include loss of income, services, care, protection, and assistance, loss of companionship, sorrow and mental anguish, and funeral and burial expenses. I can help the personal representative understand who may qualify to benefit from a wrongful death claim.
I can identify and document the losses recognized under Virginia law, including lost income, services, care, companionship, and funeral expenses. I can also handle the claim and present evidence supporting the damages suffered by the eligible beneficiaries.
Virginia law does not allow a family to receive two recoveries for the same injury and death. A survivorship action and a wrongful death claim address different losses, but the law does not permit both to produce separate recoveries for the same fatal injury.
The reason both theories may be considered in a case is that the facts may not establish the legal basis for recovery right away. An attorney may plead the claims in the alternative when it is not yet clear whether the negligent act caused the death.
The evidence developed during the case can then establish the legal theory that supports a recovery. Virginia courts have addressed cases where a jury found that negligence caused an injury but could not determine that the negligence caused the person’s death.
In such cases, the estate could recover for the person’s injuries before death, while the wrongful death claim failed because the required connection between the negligence and death was not proven. These cases show why the distinction between the two claims can have a significant effect on the outcome.
I understand how important it is to preserve a claim when the cause of death is disputed or uncertain. I can develop the case around the available evidence, address challenges to causation, and present the facts supporting the appropriate theory of recovery.
A survivorship action and a wrongful death claim serve different purposes under Virginia law, and the connection between the injury and death can determine which damages and legal theory apply. When causation is unclear, considering both legal theories may be appropriate while the evidence is developed.
Understanding these distinctions can affect the type of compensation available, who may receive it, and how the claim should be pursued. At Forbes Law Firm, I can review the circumstances surrounding your loved one’s injury and death, examine the medical records and other evidence, and assess which legal claims may apply.
Based in Hampton, Virginia, I help families in Hampton, Newport News, Williamsburg, Poquoson, and York County with personal injury and wrongful death matters. Reach out today to schedule a free consultation.
When a loved one dies after being injured by another person’s negligence, determining the right legal claim can be more complicated than it first appears. Losing someone you love after an unexpected injury can leave you dealing with grief while also trying to understand what happened and what legal rights remain.
A vehicle accident can leave you dealing with injuries, property damage, medical bills, and uncertainty about what comes next. When an electric vehicle is involved, additional questions can arise about how the crash occurred, what evidence is available, and whether the vehicle's technology played a part in the collision.
