Medical Malpractice Plaintiffs: Patients, Wrongful Death Actions, And Survival Actions


When a medical professional deviates from the standard of care due to a patient and that patient suffers damages as a result, recovery can be obtained through a civil action.  Normally it is the patient him/herself who commences the suit.  However, this is not always the situation.

Experienced medical malpractice attorneys know that the family of a decedent may sue a negligent medical professional for their own personal losses related to the demise of the decedent, or a decedent’s personal representative may sue in the plaintiff’s stead in order to recover the decedent’s damages.

A wrongful death action in New York is proscribed by Section 5-4.1 of the Estates, Powers, and Trusts Law.    This statute provides a remedy to a decedent’s distributes who are damaged by the negligence of another.  Specifically, if the wrongful death would not have occurred had the medical professional acted properly, then a claim for wrongful death arises.

The object of a wrongful death suit is to compensate the family for losses related to the death.  This claim belongs to the distributees, which means that any award granted by a jury belongs to the distributees and not the decedent’s estate.

The types of damages family member’s claim are funeral costs, loss of support, assistance, inheritance, and medical expenses related to the death.  These damages must be concrete and ascertainable.  Typically they are measured in terms of the decedent’s income at the time he/she passed.  The jury is the only proper body to determine damages because it is a fact intensive review.  Facts typically used by juries in determining an award are the decedent’s age, earning capacity, overall health, promotional opportunities, level of career achievement, and the like.

Whereas a wrongful death action is a distributee’s claim, a survival action seeks to compensate the estate of the decedent.  It is a suit that could have been brought by a decedent had the decedent not passed.  Once the court appoints a personal representative, the person named to the role is who may commence suit.  The award granted by the jury does not go to a specific person, rather the money is added to the value of the decedent’s entire estate and is distributed according to a will or by intestacy rules.

One of the main damages claimed in a survival action is for the conscious pain and suffering endured by the decedent in between the time he/she was injured by the malpractice of a doctor and the time on which the decedent passed.  The greater the time in which suffering was endured, the greater the award will be.  Remember, the pain and suffering must have been conscious.  Knowledge of impending death may also increase the award.

Additional statutes, such as New York EPTL 11-3, will also discuss your rights.  A limitations period will require you to commence a suit timely and experienced medical malpractice attorneys will be able to discuss all laws, relevant cases, and the like.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at