Maryland Survival Action Attorney

A Maryland survival action attorney can assist you in creating an estate for your family member after a wrongful death. Off the bat, it is critical to distinguish between a survival action and an action for wrongful death. Often, these claims are joined together. A Maryland survival action is filed on behalf of the decedent’s estate. Meanwhile, a wrongful death claim is made by either a spouse, parent, or child of the deceased for damages other than that which the decedent is entitled to. We will continue to differentiate the two claims in detail below. Further, we will detail the legal basis for a survival action in Maryland and whether it is suitable for your family.

Maryland’s Survival Statute

Maryland Code § 6-401 governs survival actions in Maryland. This Section of the code holds that a cause of action survives the death of either party. Thus, the ability to make a claim depends on whether the plaintiff passes away or the defendant. This is critical because the common law does not allow for recovery after the death of either of the parties. The common law in Maryland holds that when the plaintiff or defendant dies, the right to claim compensation dies with them. This was true, in part, because a personal injury is considered highly personal in nature, hence the name. Thus, courts believed that the damages recoverable for pain and suffering should not go to anyone but the person who actually suffered the pain. The court saw no point in someone who never suffered physical pain receiving financial compensation for pain suffered by someone else.

Courts also understood that a survival action can complicate and prolong estate settlements. However, as lawmakers in Maryland have clearly established, that is of a different order of importance than the right to compensation despite a party’s death. Allowing defendants to escape civil liability does not align with our civil justice system in Maryland or the country.

Difference Between Survival Actions and Wrongful Death Claims

A Maryland survival action attorney can work hand in hand with a wrongful death lawyer, or we can handle the two claims jointly. Generally, it is advantageous to have the same attorney for both claims. In limited circumstances, there is a conflict of interest. For example, if it is suspected that the family member seeking to file a wrongful death claim is responsible for the death of the decedent, then you may need a different attorney. But in most other scenarios the same attorney can represent both claims. As alluded to above, a survival action is pursued by the estate of the decedent. As the name suggests, a survival action is when the right of the decedent and plaintiff to sue the defendant survives the victim’s death.

Meanwhile, a wrongful death claim is a claim by a spouse, parent, or child. This is for a separate set of damages than the survival action. Additionally, for a survival action, an estate must be created. A Maryland survival action attorney can assist you in this process. Whomever the decedent elected to receive his estate will receive the assets won at trial or via settlement in the survival action. Thus, the wrongful death claimant can be the same person who receives compensation in the survival action. If the decedent does not have a will, then the assets will follow the rules of intestacy.

• If a decedent has children but no spouse, the children inherit everything, per § 3-103.
• If the decedent has a spouse but no living children, the spouse inherits everything, per § 3-102(a).
• If the decedent has a spouse and children who are minors, the spouse inherits one-half of the estate, and the children inherit the remainder, per § 3-102(b).

Speak to a Maryland survival action lawyer to learn more.

Legal Basis for Survival Actions in Maryland

The legal basis for survival actions in Maryland depends on the rules of liability. If we can prove that a person or entity is liable for the death of a loved one, we have a legal basis for a survival action. There is no inherent rule unique to survival actions proving we have a legal basis for suit. The issue in a survival action quickly becomes whether sufficient assets cover damages. In almost all cases, we want a defendant with an applicable insurance policy to cover a judgment against the defendant. This is why many personal injury lawyers pursue car accident cases. Unfortunately, because a survival action generally pursues such a high amount of damages, the typical auto insurance policy will not cover the damages. This is especially true in Maryland, where minimum limits are a mere $30,000.

Of course, if the decedent had an insurance policy, we could make an additional claim under that policy. As experienced Maryland survival action attorneys, we will leave no stone unturned in uncovering as much compensation as is available for your family member’s death. If applicable, we will look to other potential defendants. It is possible we can hold the state of Maryland liable or some other private company or entity. Remember, it is possible that more than one party shares responsibility for the loss. If this is true in your case, we will hold each party responsible. If a defendant played a role, they may be jointly and severally liable. This makes all defendants in a lawsuit legally liable for damages up to the entire amount awarded.

So, if one party cannot pay the total amount despite being primarily responsible for the death, the others named as defendants must pay more than their share to account for your loss.

Who Can Initiate a Survival Action?

The estate of the decedent can initiate a survival action with assistance from a skilled Maryland survival action attorney. But who runs the estate itself? The personal representative of the estate runs the estate. This role is also known as the administrator or executor. The administrator can be anyone the decedent wants it to be, so long as it is signaled before the decedent’s passing. If no one was selected, we defer to the rules of intestacy.

Types of Damages Recoverable in Survival Actions

This is relatively simple. The types of damages recoverable in survival actions with help from an experienced Maryland survival action attorney at Gelb & Gelb include any medical expenses the estate is on the hook for, any lost wages accounted for between the injury and time of death, and any pain and suffering the decedent had to go through because of the actions of the defendant. If the decedent passed away immediately and did not suffer, the estate will not be entitled to pain and suffering damages. This is a very matter-of-fact evaluation. If the decedent suffered in immense pain for hours during emergency surgery in a nearby Maryland hospital, then the estate should receive compensation for that. Of course, that medical treatment was not free. Someone must pay the doctors who tried to save their life. Ultimately, the defendant must pay the estate back for these medical expenses.

Speak to a Maryland Survival Action Attorney

A Maryland survival action attorney at Gelb & Gelb can help an estate get the compensation it deserves after a death due to negligent or intentional conduct. Call our office today at (202) 331-7227 for a free consultation.