Distinguishing Between Wrongful Death and Survival Actions


Pennsylvania law recognizes two different kinds of civil litigation when a person dies through negligent or intentional circumstances: wrongful death and survival. There are important distinctions between these causes of action, and families in need of legal advice about their right to damages in accidental death cases need to understand the significance of these distinctions.

Only Certain Family Members Are Eligible to Sue for Wrongful Death

A wrongful death action belongs to the people most affected by the death of a family member. Pennsylvania law only recognizes spouses, parents or children of a fatal accident victim as eligible to commence a wrongful death lawsuit. If the decedent had no spouse, parents or children, the right to sue for wrongful death damages belongs to the personal representative of the decedent’s estate.

In many cases, the decedent will have had a surviving spouse, one or more parents, and one or more children. Whether or not the victim had a last will and testament, the share of each family member in the damages paid on a wrongful death claim will be distributed among the family according to the rules of intestate succession, that is, the rights of heirs recognized by statute in the absence of a valid last will and testament.

Wrongful Death Damages Focus on the Family’s Losses

The damages awarded in a wrongful death lawsuit focus on the losses suffered by the decedent’s family, not the decedent. Damages include loss of income, loss of support, medical and funeral expenses, and the loss of the decedent’s companionship, guidance, comfort and other contributions to family life.

While some elements of these damages are relatively easy to calculate and discount to present value, the value of the decedent’s companionship and other positive contributions is always subjective and cannot be proved in strictly economic terms. Pennsylvania juries are required to arrive at a value that they find fair and just under the circumstances of the case.

Pennsylvania Survival Actions Focus on the Decedent’s Losses

While wrongful death law considers the loss of a loved one from the perspective of the family, survival actions take an entirely different approach. They seek to recover damages that the victim would have been able to claim in a personal injury or other tort lawsuit if the victim had survived. The most important element of these damages is the conscious pain and suffering that the decedent experienced between the time of the accident and the time of death, which could be a period of minutes, or a period of weeks, months or years.

Pain and suffering in survival litigation can be proved through both lay and expert witnesses in a position to have observed the decedent’s condition, impairments and discomfort in the period between the accident and death. Unlike wrongful death damages, survival damages belong to the decedent’s estate, and only the personal representative can commence the lawsuit.

Another difference between wrongful death and survival damages concerns their distribution. Wrongful death damages are distributed under Pennsylvania intestacy rules, but are not subject to estate taxes or creditor claims against the estate. Survival damages are subject to estate taxes, can be reached by the estate’s creditors, and are distributed under the terms of the decedent’s will.

McEldrew Law in Philadelphia has almost 30 years of experience with Pennsylvania wrongful death and survival litigation in cases ranging from car and truck accidents to medical malpractice. With a highly selective approach to case management, our firm assures each client of direct access to an experienced attorney and highly individualized and attentive service.

For a free consultation about your legal rights after a fatal accident, contact Philadelphia wrongful death attorney James McEldrew. You can learn more about our practice and our results in past cases by visiting the personal injury section of our website.

New Warnings of Stryker Hip Failures with LFIT Component

X-ray scan of hip joints

A study in the Journal of Bone and Joint Surgery last month identified five cases of catastrophic trunnion dissociation in Stryker Accolade TMZ Femoral Hip Stems. What does that mean in lay terms? It means that the hip implant device fails painfully in a small percentage of patients with certain risk factors approximately 7 to 7.5 years after surgery. And the $1.4 billion settlement for patients with defective Stryker hip implants following hip replacement surgery may not be the end of the lawsuits for the company.

5 Steps to Take if Your Child was in a School Bus Accident

5 Steps to Take if Your Child was in a School Bus Accident

As parents, we like to think sending our children to school on the bus is safe. In reality, school bus accidents occur every year, often resulting in catastrophic injuries and wrongful death. In these moments it is difficult to think about involving a lawyer, however the sooner you engage a qualified lawyer, the sooner your child and family’s legal interests are protected and you can focus solely on your child and families well-being.

Olympus Revises Duodenoscope Cleaning Procedure

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Olympus sent letters to health care facilities with updated reprocessing instructions for their TJF-Q180V duodenoscope following months of media attention concerning the risk of CRE superbug infections from contaminated scopes.

The key changes are detailed in a safety communication on the FDA website for gastroenterologists, gastrointestinal surgeons, endoscopy nurses, infection control practitioners, risk managers and staff in endoscopy reprocessing units.

The FDA recommends that facilities begin using portions of the new procedure immediately. The new manual cleaning procedure involves the use of a smaller bristle cleaning brush that has not been shipped yet by Olympus. The company anticipates shipping it by early May.

In the meantime, the procedure calls for raising and lowering the elevator three times during immersion while pre cleaning, additional raising and lowering of the forceps elevator during high level disinfection, and increased flushing volume and manual flushing steps of each endoscope channel as well as the elevator recess area.

The letter from Olympus America with the Urgent Safety Notification and Updated Label Information provides their complete revised instructions. It is available at http://medical.olympusamerica.com/sites/default/files/pdf/150326_TJF-Q180V_Customer_letter.pdf

The instruction manual for the medical device previously indicated that no reprocessing of the sealed elevator wire channel was necessary.  Olympus changed the device back in 2010 but did not seek 510(k) clearance for the change.  In 2014, the FDA requested the manufacturer submit an application demonstrating the substantial equivalence of the device to prior versions.  The application is still pending.

Our attorneys have filed the first lawsuit in Philadelphia for an infection following a procedure using a duodenoscope.  The procedure took place at a Seattle hospital who has denied evidence of any CRE infections.  A Philadelphia hospital has announced a CRE superbug outbreak of at least 8 cases, including two deaths, in patients who had duodenoscope procedures in 2013 and 2014.  However, Thomas Jefferson University hospital denies that there is any link to medical scopes.  Hospitals in Seattle, Los Angeles and Pittsburgh have all had outbreaks and concluded that the CRE infections were spread by contaminated duodenoscopes.

If you are a patient who has had an ERCP procedure involving a duodenoscope, our free ebook and additional information is available at https://www.mceldrewyoung.com/superbug-infections/

Simultaneous Surgeries Create Potential Liability for Medical Malpractice, Fraud

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The practice of concurrent and overlapping procedures by medical surgeons has come into the spotlight over the past two years due to injuries resulting from the practice. Since this practice can sometimes involve fraud or medical malpractice, we thought we would take a look at it here and speak about how it interacts with our law practice.

SEPTA NHSL Crash at 69th Street: Dozens Injured


Dozens of SEPTA passengers and the conductor were injured last night when a Norristown High Speed Line train crashed into a parked train car at 69th Street Station in Upper Darby after midnight. Four were reportedly critically injured but SEPTA said none of the injuries appeared life threatening. The injured were taken to eight area hospitals following mobilization for a mass casualty incident.

Study Confirms Breast Implants Increase Rare Cancer Risk

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The largest study of the link between breast implants and lymphoma to date found that there is a greatly increased risk of a rare cancer, according to the report published this month in JAMA Oncology. The study found breast implants are associated with a 421 times greater risk of anaplastic large cell lymphoma.

Metro-North Train Derails in the Bronx – 60+ Injured and 4 People Killed in Accident

Metro-North Train Derails
Metro-North Train Derails

Metro-North Train derailed early this morning, December 1, 2013, at 7:20 a.m. in the Bronx, New York.  Metro-North authorities say four cars on a seven-car train leaving from Poughkeepsie at 5:54 a.m. derailed just feet from the Hudson and Harlem Rivers and just short of the Spuyten Duyvil station.

News agencies initially stated some of those derailed cars were in the water, but that has been confirmed that was not true.  More than 130 firefighters raced to the derailment scene to help extricate passengers and crew from the train.

Of the four people killed in this train derailment accident three where ejected from the train.  All passengers have been accounted for, said Gov. Cuomo.

The Hudson line is suspended indefinitely and the Amtrak Empire line is suspended between Albany and New York City until further investigation.

A frequent Sunday rider told a news station that he takes this train every Sunday and that it was traveling faster than usual as it approached the curve where it derailed and that was also confirmed to be one factor by the Metropolitan Transportation Authority President Tom Prendergast during a briefing near the derailment.  A similar incident took place near the area in a July derailment but on a different track.

Friends and families trying to obtain information about people that may have been on this train are advised to contact New York City’s 311 information system, Gov. Cuomo said.


If you or someone you know have been injured in this or any other train accident please contact experienced Railroad Accident Attorney James J. McEldrew, III.  Mr. McEldrew is available to answer all your questions.  Jim was on the Board of Directors of the Academy of Rail Labor Attorneys from 1994 until 2001, and was President of the Academy of Rail Labor Attorneys from 2001 to 2002.  Call Jim today at 215-694-1267 or email him at jim@mceldrewlaw.com.

Federal Court: Essure Lawsuit Can Proceed

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A Federal Court has green-lighted our clients’ cases against Bayer to proceed to discovery for injuries which followed their use of the permanent birth control device Essure. Other individuals who have experienced chronic pelvic pain, hysterectomies and other serious injuries which they suspect were caused by Bayer’s device should call (215) 545-8800 for a free legal consultation by an attorney at McEldrew Young Purtell Merritt.

Ikea Relaunches Dresser Recall After Another Child Dies

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Ikea relaunched the recall of 29 million dressers and chests last week after a California toddler was found trapped underneath an Ikea Malm dresser and died in May. The recall was first announced in June 2016 and Ikea has reportedly already processed more than 1 million recalls.

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