What Evidence Is Needed to Prove a Survival Action Claim?
What evidence is needed to prove a survival action claim? In the tragic event of a fatal accident or incident, you and your surviving family members may have the right to file a survival action claim. A survival action claim is a legal proceeding brought on behalf of the deceased person’s estate to seek compensation for damages that the deceased person sustained before their death. To successfully prove a survival action claim, certain crucial pieces of evidence must be presented.
Burger Law is a personal injury law firm that specializes in both survival actions and wrongful death claims. Based in St. Louis and Chicago, we serve the injured throughout Missouri and Illinois. If a loved one was killed by another person’s negligence, call Burger Law today at or contact us online.
Understanding Survival Action Claims
A survival action claim is a legal action that allows the estate of a deceased person to pursue a claim for damages they suffered before their death. The purpose of a survival action claim is to seek compensation for the deceased person’s pain, suffering, medical expenses, lost wages and other damages resulting from the injuries sustained before their death. This means you can make a survival action claim if your deceased loved one was injured by another person’s negligence, whether those injuries contributed to their death or not. For example, say your loved one was injured in a car accident before they died:
- If they sustained a serious brain or spine injury that eventually leads to their death, you would file both a wrongful death and a survival action claim. The survival action claim would account for the money owed to your loved one for the expenses and pain and suffering they had while they still lived.
- If they sustained a broken bone that healed, and they died a year later of causes not related to the accident and before they were compensated for the accident, you would still make a survival action claim to get the damages owed to them. The claim would simply not have the wrongful death element.
Evidence Required for a Survival Action Claim
The damages sought in a survival action claim are essentially the same as those sought in a personal injury case: medical expenses, lost wages and pain and suffering. The evidence needed to secure those damages include:
- Proof of Negligence or Wrongdoing
- Proof of Pain and Suffering
- Proof of Financial Damages
- Casual Link
1. Proof of Negligence or Wrongdoing
To prove negligence in a personal injury or survival action claim, you need to demonstrate the five elements of negligence:
- The other party had a duty of care to act safely and protect your loved one from harm
- The other party breached their duty and acted unsafely
- Cause in fact, the action without which the injury wouldn’t have occurred
- Proximate cause, which determines whose is liable for the cause in fact
- Your loved one sustained damages because of the other party’s breach of duty
These elements form the foundation of any survival action, personal injury or wrongful death case. The exact elements needed may depend on the type of incident that caused your loved one’s injuries. For a car accident, you may need a police report establishing the other driver’s fault. For a slip and fall case, you may need security footage from the building where the accident occurred. Typically, evidence proving negligence involves eyewitnesses, expert witnesses, medical experts and documentation establishing how the other party caused your loved one’s injuries.
2. Proof of Pain and Suffering
Non-economic damages, often called “pain and suffering,” is meant to compensate people for the physical and emotional pain they endured because of their injuries. In a survival action case, pain and suffering refers to the pain your family member endured before they passed.
To prove pain and suffering in a survival action claim, you need to show how your loved one’s life was affected by the accident. While pain and suffering is inherently subjective, there are different types of evidence you can use to show how your loved one suffered:
- Medical records and testimony from medical experts to establish the severity of the injures and how those types of injuries affect someone’s day-to-day life
- Mental health records if your loved one ever sought therapy as a way to deal with the emotional impact of their injuries
- Journals, letters or emails your loved one wrote before they passed that detail how their injuries affect them
- Testimony from friends and family who knew your loved one well and saw how their life was different before and after the accident
- Photos or videos detailing your loved one’s physical condition after the injuries
3. Proof of Financial Damages
A survival action seeks compensation for the damages directly suffered by the deceased. These damages might include medical expenses incurred during treatment, lost wages from the time of injury to death and other financial losses directly attributable to the injury. Evidence you can use to demonstrate financial losses includes:
- Emergency room, hospital and doctors’ bills
- Receipts for medications
- Employment records to show how their ability to work changed
- Tax returns, W2s or other financial documents showing money they weren’t able to earn because of their injuries
- Receipts or other documentation of out-of-pocket expenses related to the accident, such as transportation to and from medical appointments or hiring help around the house
Survival Action Lawyers in Missouri and Illinois
If you’ve lost a loved one due to another’s negligence, the dedicated and compassionate team at Burger Law is ready to fight for justice on their behalf. Don’t let your loved one’s pain and suffering go unanswered. Contact us today at or through our online form for a free consultation and to start your survival action claim and ensure your loved one’s story is heard.
