When the victim of medical negligence dies.

All too often, medical negligence kills a patient. In Pennsylvania, lawsuits to recover for the death of a loved one consist of two separate actions, i.e., a  “wrongful death” action and a “survival” action. Both of these actions had to be created by legislative action because neither was recognized by the common law. The survival action is the action that the decedent could have brought had he or she lived and compensates for damages sustained by a decedent before death. As a result, any recovery under a survival action is considered a part of the decedent’s estate, subject to Pennsylvania inheritance taxes and claims of the decedent’s creditors. If a decedent died with a Last Will and Testament (“testate”), any survival recovery and the decedent’s other assets will be distributed according the Will. On the other hand, if a decedent died without a Will (“intestate”), the survival recovery and remaining assets will be divided as required by Pennsylvania intestacy laws.

On the other hand, a wrongful death action compensates certain survivors of a decedent for their losses. Under Pennsylvania law, only spouses, children and parents are potentially eligible for compensation. It must be noted, however, that although a surviving spouse and minor children can recover in all cases (assuming liability can be proven), adult children and parents can recover wrongful death damages in limited circumstances. Any wrongful death recovery will be divided among the eligible “wrongful death heirs” according to a legislative formula. Because a wrongful death action is intended to compensate wrongful death heirs for their losses occasioned by the decedent’s death, any recovery goes directly to the wrongful death heirs. Such recovery is not a part of a decedent’s estate and is not subject to Pennsylvania inheritance taxes or claims of creditors.

Under Pennsylvania law, only a decedent’s personal representative may maintain a survival action. (In most cases where a decedent dies testate, the Will appoints the personal representative-where a decedent dies intestate, the right to serve as personal representative is generally decided by intestacy laws). However, the right to bring a wrongful death action is somewhat different. In the first six months after a decedent’s death, only the personal representative may file a wrongful death action. If no action is filed in the first six months, anyone entitled to share in wrongful death damages may bring the action. From a practical standpoint, however, in almost all cases, a wrongful death action is brought by a decedent’s personal representative because even though the two actions are completely separate, the Pennsylvania Rules of Civil Procedure require that if the two separate actions are brought, the two actions must be consolidated for trial. A final important point to remember-just because someone has the right to bring a wrongful death action does not mean that person has the right to share in the wrongful death damages. (This situation invariably arises where a decedent’s only wrongful death heirs are minor children.)