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None of us expect to be party to a survival claim. The loss of a loved one to nursing home abuse is a dreaded circumstance, and the added challenge of learning the laws pertaining to your claim can compound your distress.

You’re bound to have many questions as you navigate the intricacies of making a survival claim. We’re here to help you make sense of the process and to address your most pressing concerns.

In this article we’ll explain who can collect damages, what this process entails as well and some helpful tips to making a successful survival claim.

What are survival claims?

A survival claim is essentially a personal injury claim on behalf of the deceased.

If an immediate family member has died as the result of suspected nursing home neglect or abuse, you may be entitled to make a claim for damages on their behalf.

A survival claim is prosecuted the same way as a personal injury claim but is governed by different statutes.

The law pertaining to survival claims outlines what constitutes an eligible claim. Arizona survival claims are governed by A.R.S. § 12-611, which states:

When death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action to recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages.”

Before the passing of survival laws, a person’s claim to damages died with them. You can imagine the conflict this would cause if extensive medical bills or lost wages had been incurred prior to the victim’s death.

What can be claimed for?

Survival claims are necessary to cover the expenses accumulated during the decedent’s life, as a result of their injuries. Often, these are numerous.

In the case of nursing home abuse, injuries and harm may have been inflicted over a long period of time.

As a result, it is likely your loved one incurred damages while they were alive, such as medical expenses, pain and suffering, and lost income. These are damages that can be recovered through a survival claim.

However, there are multiple types of claims bereaved family members can make on behalf so it’s important to understand the difference.

Survival Claims vs. Wrongful Death Claims

Survival and wrongful death claims are both made following the death of the victim of abuse, but they are slightly different:

  • A survival claim is a claim made on behalf of the deceased individual as if they were still living.
  • A wrongful death claim is made on behalf of the deceased’s family for their own damages due to the loss of their loved one.

The other main difference is the type of damages that can be recovered.

  • Wrongful death claims can include the pain and suffering of family members, loss of income beyond death, and funeral expenses.
  • Survival claims also cover a specific range of damages, which we’ll look at in more detail below.

In Arizona, you may bring a survival claim and a wrongful death claim simultaneously.

Recoverable damages in a survival claim

The damages that can be recovered in a nursing home abuse survival claim are those that were incurred at any time from the inception of the physical, mental, or fraudulent abuse, and up to the point of death.

Punitive damages against the nursing home or against the perpetrator of the abuse can also be claimed through a survival action.

Who can file a survival claim?

The executor of the decedent’s estate is typically the one to file a survival claim.

This can be any legally recognized financial dependent including a spouse, child or children, and occasionally siblings, grandparents and other family members.

Being “legally recognized” is important. You may feel that you are entitled to compensation for the loss of a loved one due to nursing home abuse, but not be legally able to file the claim yourself.

Only the executor of the decedent’s estate is legally entitled to file a survival claim.

There are a few helpful terms you will need to know in order to understand how survival claims work:

  • Estate: The sum of an individual’s net worth, which is determined by adding all assets and subtracting all debts. Upon death, an individual’s net worth, or estate, is distributed through probate.
  • Probate: Probate is the process of verifying the will and distributing all assets.
  • Probate assets: All assets that are owned solely by the deceased are considered in probate. These are collected and any creditors are paid from the proceeds of these assets.
  • Executor: The executor is the person responsible for managing the decedent’s estate. If the deceased left a will, it likely names one person as the executor of their estate. Often, this is a child or spouse, but this can be a neutral third party. If there is no will, the court will appoint an executor, or administrator. The executive or administrator may or may not also be able to recover damages in a survival claim.

Who can collect damages in a survival claim? 

When a survival claim is made, it is made on behalf of the decedent’s estate.

The estate is the only beneficiary of the claim, meaning that a settlement is paid to the estate itself, rather than to individuals. One plaintiff (the executor of the estate) brings the claim as a representative of the estate.

Once a settlement is made, the proceeds go through probate, in which all creditors are paid with the assets of the estate. Beyond this, the remainder of the decedent’s estate is distributed to beneficiaries as outlined in the will, or as determined by intestate succession if no will exists.

In Arizona, intestate succession is outlined in A.R.S. § 14-2101-2114. These statutes essentially lay out the following:

  1. If the decedent left children but no spouse, the children inherit the estate.
  2. If the decedent left a spouse, but no children, the spouse inherits the estate.
  3. If the decedent left a spouse and children of that marriage, the spouse inherits the estate.
  4. If the decedent left a spouse and children of the marriage and children of either spouse from another marriage, the estate is divided between the spouse and children.
  5. If the decedent left siblings but no spouse or children, the siblings inherit the estate.

For obvious reasons, intestate issues can be complicated by circumstances, for help understanding how they apply in your circumstances it can be best to speak with an experienced lawyer.

Navigating your survival claim

Nursing home abuse can be devastating to families on many fronts, not the least of which are the legal issues and complications that might arise from the wrongful death of your loved one.

It can be challenging to navigate the law in the best of circumstances and may seem near impossible in the worst.

For these reasons, you may wish to seek the counsel of a qualified and experienced Arizona personal injury attorney. They can help you understand your rights, overcome opposition, and get the best survival settlement you can on behalf of your loved one.

An attorney specializing in nursing home abuse in Arizona can help you get the resolution and closure you deserve.

Survival Claims FAQs

How long do I have to make a survival claim?

You have a window of no less than four months after your loved one passes and no more than twelve months after their death to bring a survival claim.

The time in which to bring a survival action is controlled by A.R.S. § 14-3109, which states: “Upon the death of a person in whose favor there is a cause of action which has not been barred as of the date of his death, the limitation of the action ceases to run until a personal representative is appointed or until twelve months after the death, whichever first occurs, but shall not bar such action sooner than four months after death even if a personal representative is appointed earlier.”

How can I stop a family member that is intruding on a survival claim?

If you have questions about your rights or those of your relatives, you may wish to speak to an attorney experienced in nursing home abuse cases and survival law.

Losing a loved one is one of the most difficult times in a person’s life. Most importantly, know that as an executor of a loved one’s estates, you have unique rights and responsibilities. When bringing a survival claim, it is advisable to consult with neutral parties who can help you manage challenges from other parties and act from a place of information rather than emotion.

Can the same damages be pursued under both a wrongful death and survival claim?

No. Compensation sought must be separate and distinct. For instance, you may not claim damages for medical bills under a survival claim and then claim the same damages on a wrongful death claim. The laws somewhat provide for this by distinguishing between what constitutes a wrongful death versus survival claim, and by defining the purpose of each. When it is not clear where liability for a particular damage lay, it may be helpful to consider that survival damages occur before the decedent’s death and wrongful death damages occur after.

I don’t wish to be the executor of my mother’s estate. Can I petition the court to appoint someone else?

If a loved one has named you as the executor of their will, you are not obligated to fulfill the duty. A court of law still has to approve the will and assign you as the executor. Prior to this, you may file to remove yourself from the role. If you choose not to act as executor, the court will appoint an executor to the estate.

Know that if you do decide to act as the executor of your loved one’s estate, there are resources available to help you accomplish the task. An attorney with probate experience can help you execute your duties responsibly. You may learn more about the roles and responsibilities of an executor at  https://www.azcourts.gov/probate.

My father accumulated extensive medical bills and didn’t keep good records before his death. How can I possibly organize this?

It can be exceedingly difficult to get the affairs of a loved one’s estate in order. Often it requires many hours of investigating to uncover potential damages in a claim and organize them to produce a case.

If you are doing this on your own you will need to contact the nursing home, medical providers, and any third party creditors. As an executor, you will need to access bank account information and cross-reference bank records with medical billing records. It may prove time consuming, but a well-organized case will save you time and headaches in the long-run.

An experienced attorney can help by compiling medical bills and organizing a claim. Survival claims attorneys know what to look for and are willing to put in the hours of contacting medical facilities, gathering records, and compiling evidence of a valid claim.

If you’d like assistance with a survival claim, or would just like to discuss your options you can contact Thompson Law for a no obligation consultation.

Our experienced attorneys offer comprehensive guidance on all personal injury matters by phone or video conference call.

Our team of lawyers work closely with their injury clients across Arizona, communicating clearly whilst offering reassurance and empathy through an often very difficult and emotional process. During the free consultation, our lawyers will discuss your concerns before creating a comprehensive plan for you, while also assessing the strength of your claim.

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