Survival Actions in Medical Malpractice: Seeking Accountability for Harm

Survival Actions in Medical Malpractice: Seeking Accountability for Harm

Survival Actions in Medical Malpractice: Seeking Accountability for Harm


Medical malpractice occurs when a healthcare provider’s negligence or wrongful actions result in harm or injury to a patient. Tragically, some medical errors can lead to a patient’s untimely death. In such cases, the surviving family members have the legal option to pursue accountability and compensation through a survival action. This comprehensive guide explores the intricacies of survival actions in medical malpractice, including their purpose, elements, challenges, and the critical role they play in seeking justice for those affected by medical negligence.

I. Understanding Medical Malpractice

Medical malpractice refers to the failure of a healthcare provider, such as a doctor, nurse, or hospital, to meet the accepted standard of care, resulting in harm or injury to a patient. The standard of care is the level of care and treatment that a reasonably skilled and competent healthcare provider would provide in similar circumstances. Medical malpractice can encompass a wide range of actions and omissions, including misdiagnosis, surgical errors, medication mistakes, and inadequate treatment.

II. The Purpose of Survival Actions

When medical malpractice leads to a patient’s death, the law recognizes that the victim’s suffering should not go unaddressed. Survival actions serve a critical purpose:

Continuing the Deceased’s Legal Rights: Survival actions allow the deceased person’s legal claims for damages, such as pain and suffering, medical expenses, and lost wages, to continue on their behalf.

Seeking Compensation for the Deceased’s Estate: These actions seek compensation for the harm and losses endured by the deceased person from the time of the medical error until their death. The damages awarded become part of the deceased person’s estate and may be distributed to heirs or beneficiaries.

Holding Healthcare Providers Accountable: By pursuing survival actions, surviving family members can hold healthcare providers accountable for their negligent actions and prevent similar incidents from happening to others in the future.

III. Elements of a Survival Action in Medical Malpractice

To succeed in a survival action in a medical malpractice case, several key elements must be established:


It must be proven that the healthcare provider owed the deceased patient a duty of care, breached that duty, and that breach resulted in injuries or harm.


There must be a direct link between the healthcare provider’s negligence and the injuries sustained by the patient. It must be demonstrated that the negligence was a proximate cause of the harm.


The survival action seeks compensation for the damages and losses suffered by the deceased patient, including medical expenses, pain and suffering, lost wages, and other related costs.

Personal Representative:

A personal representative or executor of the deceased person’s estate must be appointed to initiate and pursue the survival action on behalf of the estate.

IV. Challenges in Medical Malpractice Survival Actions

Survival actions in medical malpractice cases are not without challenges. Several factors can make these cases complex:

Medical Complexity:

Medical malpractice cases often involve complex medical issues, and proving negligence may require expert testimony from healthcare professionals who can attest to the standard of care and how it was breached.

Causation and Proof:

Establishing the direct causal link between the healthcare provider’s negligence and the patient’s injuries can be challenging. Medical records, expert witnesses, and extensive documentation may be necessary to prove this connection.

Emotional Toll:

Surviving family members are already dealing with the emotional trauma of losing a loved one. Pursuing a survival action can add additional stress, making it essential to have the support of legal professionals who can handle the legal complexities.

Statutes of Limitations:

Medical malpractice cases, including survival actions, are subject to statutes of limitations. Failing to file within the specified timeframe can result in the loss of the right to pursue a claim.

Expert Testimony:

Medical malpractice cases often require expert testimony to establish the standard of care, breach of duty, causation, and damages. Finding and retaining qualified expert witnesses can be challenging.

V. Compensation in Medical Malpractice Survival Actions

Compensation sought in medical malpractice survival actions can encompass various elements:

Medical Expenses: Reimbursement for the medical bills and expenses incurred by the deceased patient as a result of the medical error.

Pain and Suffering: Compensation for the physical and emotional pain and suffering experienced by the patient between the time of the negligence and their death.

Lost Wages: Recovery for the income the deceased patient would have earned had they survived their injuries.

Property Damage: Compensation for any property damage resulting from the medical error, such as damage to medical devices or prosthetics.

Funeral and Burial Expenses: Coverage for the funeral and burial expenses associated with the deceased patient’s passing.

Other Economic Losses: Reimbursement for any additional economic losses suffered by the patient before their death, such as home modifications or ongoing medical care.

VI. Statutes of Limitations in Medical Malpractice Survival Actions

The statutes of limitations for medical malpractice survival actions vary by state and can depend on the specific circumstances of the case. Generally, the clock starts ticking when the patient or their family reasonably discovers the injury or harm caused by the medical error.

VII. Legal Recourse and Consultation

Surviving family members seeking justice for a loved one’s suffering due to medical malpractice should consult with experienced attorneys who specialize in medical malpractice and personal injury law. Legal professionals can help navigate the complexities of survival actions, gather evidence, retain expert witnesses, and build a strong case to hold negligent healthcare providers accountable.

VIII. Conclusion: Seeking Justice for Medical Malpractice

Medical malpractice can result in tragic consequences, including the loss of a loved one. Survival actions provide a means to seek accountability and compensation for the harm and suffering endured by the deceased patient. By pursuing these actions, surviving family members can hold healthcare providers responsible for their negligent actions, prevent future incidents, and obtain the compensation they deserve. While no amount of compensation can truly replace a lost loved one, it can provide financial relief and closure while honoring the memory of the patient.

Contact Us for a Consultation

Amir Law Group P.C. is a law firm with winning results and the track record to prove it. Whether it is a employment issue, a personal injury, or estate planning, our attorneys have the talent and knowledge to thoroughly represent you. Our attorneys will guide you through the process every step of the way.

We are not afraid to litigate and take cases to trial, and have trial experience. We are relentless and we win. Clients also have first-hand access to our attorneys who are available day or night and will even provide you with their cell phone numbers. Case updates come straight from your attorney rather than paralegals or staff members.

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