Under California law, a Survival claim is not a new cause of action. Instead, it is a cause of action, which used to belong to a deceased person (“Decedent”) prior to his or her death but, by operation of law, survives Decedent’s death. Unlike Wrongful Death claims, a Survival cause of action does not belong to Decedent’s heirs. Instead, the claim is passed on from Decedent to Decedent’s successor in interest.
A Survival cause of action can be asserted and maintained by Decedent’s personal representative. If there is no personal representative, then Decedent’s successor in interest has the legal right to pursue the Survival claim. California Code of Civil Procedure § 377.30.
The damages, which can be recovered in Survival causes of action, are limited. Specifically, the following types of damages are recoverable:
- the damage or loss that Decedent incurred prior to his or her death such as:
- medical expenses
- lost wages
- other pecuniary (monetary / economic) losses sustained by Decedent before death
- any punitive or exemplary damages, as well as any other penalties, which Decedent would have been entitled to recover if he or she continued to live.
Significantly, damages for Decedent’s pre-death pain and suffering, or disfigurement, are not recoverable in Survival claims. California Code of Civil Procedure § 377.34.
There is an exception to the rule prohibiting recovery of Decedent’s pre-death pain and suffering. This exception pertains to Elder Abuse & Neglect cases. In those cases, if physical abuse or neglect is proven by clear and convincing evidence, and a defendant is found to have committed elder abuse with recklessness, oppression, fraud, or malice, recovery of Decedent’s pre-death pain, suffering, or disfigurement, is expressly allowed. California Welfare & Institutions Code § 15657.