Call 985-888-0640 to speak to a wrongful death attorney or email us here.

If you have a case involving what you believe is a wrongful death, regardless of the cause, call us today for a free consultation.

What are the differences between a wrongful death claim and a survival claim in Louisiana?

What is a wrongful death action?

The phrase “wrongful death” is a Louisiana civil law term meaning the person’s death was caused by the fault of another party.

Specifically, the Louisiana Civil Code states that “if a person dies at the fault of another…” then their legal beneficiary may bring a wrongful death action on their behalf against the at-fault party.

The person(s) who can bring a wrongful death action are Those people are listed in this order:

  1. The surviving spouse and child or children of the deceased, or either the spouse or the child or children.
  2. The surviving father and mother of the deceased, or either of them if he left no spouse or child surviving.
  3. The surviving brothers and sisters of the deceased, or any of them, if he left no spouse, child, or parent surviving.
  4. The surviving grandfathers and grandmothers of the deceased, or any of them, if he left no spouse, child, parent, or sibling surviving.

An action for wrongful death can arise from a car wreck, by a defective product or by medical negligence just to name a few potential causes of action. 

Regardless of the mechanism of injury, if the person’s death was caused by the fault of another person or company, then you have a viable wrongful death action.

How long do I have to file a wrongful death lawsuit?

A claim for wrongful death prescribes one year from the date of death.    T

his means that you must file suit within one year from the person’s death.

What damages can I claim in a wrongful death suit?

The damages available to you in a wrongful death case are different than those in a typical personal injury claim.

For example, wrongful death claims generally won’t have future medical costs which are associated with the costs incurred to treat someone who has a serious, debilitating injury that requires regular medical care such as continued nursing services, home health services, prescription meds, and future surgeries and rehabilitation.

However, if the claimant depended on the decedent’s income, then they can claim loss of earnings as damages.

It is also worth noting that in Louisiana, the law will typically limit the pain and suffering damages to the amount of time the person survived between the event that caused the injury and when the person died.

This is a harsh rule and we strongly object to it. Louisiana juries have often awarded substantial amounts of damages in wrongful death cases only to have them reduced on appeal. 

We have seen cases where the court of appeal mentions that the person did not suffer long since they died shortly after the catastrophic event.

The courts will also consider the manner of death and the amount of suffering that the person experienced before they died. 

What is a Survival Action?

A survival action is the lawsuit that the decedent’s representative brings for the losses they have suffered from their relative’s death.   

What damages can be brought in a survival action?

Here is a non-exclusive list of damages you might see in a typical wrongful death lawsuit: 

  1. Survival Damages            
  2. Physical pain and suffering;              
  3. Mental pain, suffering and anguish;                
  4. Loss of enjoyment of life;
  5. Loss of consortium and companionship;            
  6. Fear of death;
  7. and all other survival and lost chance of survival damages allowable.   

What are Wrongful Death Damages?   

Past, present and future pain and suffering;

  1. Past, present and future loss of companionship;                    
  2. Past, present and future loss of consortium, affection, society and service;                   
  3. Past, present and future mental distress and anguish;                   
  4. Past, present and future loss of support;
  5. Funeral expenses;
  6. Lost sick time and travel expenses;
  7. All other wrongful death damages allowable under Louisiana law. 

What are some other things to consider?

Louisiana is a comparative fault state. 

This means that your damages can be reduced proportional to the percentage the jury deems the decendent to be at fault.

In Louisiana, if you witnesses the catastrophic event or accident that caused your relative’s death, or arrived shortly on the scene, you may be entitled to what’s know as “Lejeune damages.”

In Lejeune v. Rayne Branch Hosp., 556 So. 2d 559 (La. 1990) the Louisiana Supreme Court allowed the decedent’s wife to claim the damages she experienced for witnessing her husband’s demise.  The Court recounts her gruesome claims: “Mrs. Lejeune, as succession representative, claims damages for pain and suffering, disfigurement, mental anguish and humiliation on behalf of her husband and, individually, for her own mental anguish damages. 

She contends that she “suffered mental anguish, due to her seeing her husband having been eaten alive by a rodent.” The Court concluded that:“In the case before us, involving the latter type of mental pain and anguish claim, the district court, and the court of appeal in a lengthy and studious opinion, have ruled that Mrs. Mabel LeJeune has stated a cause of action for her own mental pain and anguish damages resulting from a series of rat bites to her hospitalized comatose husband.” 

If you were to see your loved one in a car accident that took their life, you would be able to claim Lejeune damages.  If you were to arrive on the accident scene shortly thereafter, you might also be able to claim Lejeune damages.

Wrongful death cases are emotionally difficult because the person’s relatives have to bring the case on their behalf. I have handled numerous wrongful death cases in my career and each one is difficult and emotionally draining.  I have helped families recover damages for the wrongful death to their loved ones in medical negligence cases. 

If you think your loved one’s death was caused by another’s fault, call us for a free consultation.  We can analyze your situation and let you know if we think you have a claim. Please remember that you only have one year from the date of death to file a lawsuit, so do not delay.  We are always happy to give you a free consultation or even a second opinion. You can contact us at 985-888-0640

Legal References and Citations: 

La. C.C. art. 2315.1 Survival Action

La. C.C. art. 2315.2 Wrongful Death Action

Lejeune v. Rayne Branch Hosp., 556 So. 2d 559 (La. 1990)