_Exploring the Importance of Survival Damages in Wrongful Death

What Are Survival Damages?

In the old days, if the injured party died, his family could do virtually nothing. Now, most wrongful death statutes also account for a situation when the death is not immediate.  In such instances, there are procedures on how to claim and pursue such damages. These are called “survival damages” in a wrongful death lawsuit. Unlike damages sought on behalf of the deceased person’s beneficiaries, survival damages pertain specifically to the losses and suffering endured by the deceased prior to their passing. While most wrongful death lawsuits focus compensating surviving family members for damages, one can also claim compensation for the suffering of the decedent between the onset of mortal injury and death. State statutes generally control these damages, rather than relying on the many years of common law. Hence, there are particular procedures a wrongful death attorney follows to claim such damages. Understanding the significance of survival damages is essential in navigating the complexities of wrongful death litigation.

In Missouri, the same folks entitled to bring a wrongful death lawsuit are also allowed to make a claim within the same lawsuit for the decedents “survival damages”; those suffered between the onset of injury and death.  Those entitled parties can pursue damages if the decedent experienced pain, medical expenses, etc. Pursuers can seek damages even in days or weeks elapse between the original injury and death. Claimants can also seek the pain and suffering of the decedent during such time, as long as the pain and suffering was conscious.  For a mortally injured person to recover such damages, there must be evidence that they were aware of their suffering.

How does one prove “conscious pain and suffering” if by all appearances, an injured person never gains consciousness?  Many times, people can use anecdotal testimony. Such as moans, open eyes, reaction to things said, or a hand squeeze to a loved one.  Certainly, if the injured person is fully awake and alert, there is no need to rely on such anecdotal testimony.

How Damages Are Recovered


In Missouri, a single action may recover the elements of damages, including survival damages. Among these damages are expenses for the last illness including lost earnings and medical bills. Those persons entitled by statute to file and pursue a case for wrongful death can also include allegations for survival damages.  In the event of a victory at trial, such survival damages are added to the funds awarded for the death itself and the damages suffered by the survivors. Such as lost support, income, comfort, and guidance.


In Kansas, two separate and distinct causes of action arise when death results from negligence; a survival action, K.S.A. 60-1801, and a wrongful death action, K.S.A. 60-1901. A representative of the decedent’s estate can pursue “survival damages” in Kansas. Damages recovered are then distributed from the estate through the same rules of intestate succession that govern who may file a wrongful death lawsuit.  If there is not already an open estate, a representative must be appointed to pursue the survivor’s action.  Although this can be anyone, generally, the representative will be a family member who also may participate in the wrongful death case.  If left to a trial, the damages from the survival action do not automatically flow to the family members aggrieved from a wrongful death.  The estate will receive payment for such damages, and the laws of intestate succession apply (someone who dies without a will).   Here are the basic Kansas rules governing intestate succession:

If you die with: Here’s what happens:
children but no spouse, children inherit everything.
a spouse but no descendants, spouse inherits everything.
a spouse and descendants, spouse inherits 1/2 of your intestate property and

descendants inherit 1/2 of your intestate property.

parents but no spouse or descendants, parents inherit everything.
siblings but no spouse, descendants, or parents, siblings inherit everything.


Factors That May Affect Compensation for Survival Damages

  1. The length of the survival period. Survival for weeks or months would arguably command a greater award than survival for moments. Although even a short period of survival can result in an award.
  2. Did the decedent pursue a personal injury lawsuit for the same incident before their wrongful death? For instances when a decedent survives for months or even years, one could file a lawsuit before the injured person passes. This not only suggests a longer period of suffering, but also may influence how to apportion damages between survival damages and those historically unique to the survivors.
  3. It is necessary to prove causation and gather evidence to prove the damages in the wrongful death claim. Not all damages automatically flow from the death-producing event. One must demonstrate that the death of the decedent caused any claimed damages. For example, if the decedent died from injuries suffered in a car collision but also suffered from cancer at the time of death. It may be difficult to prove which damages are directly attendant to the car wreck rather than the pre-existing, terminal illness.
  4. The wrongful death claim meets the statute of limitation. In Missouri, generally, one must file a wrongful death case within three years from the date of the event resulting in death. In Kansas, one must file the case within two (2) years.  There are small exceptions to both rules, so consultation with a knowledgeable attorney is essential. A wrongful death attorney can sort through the nuances of the type of case and other available theories.

We Can Help

The legal process could become more complex if the decedent survived for some time before their wrongful death. In the intricate realm of wrongful death cases, the importance of survival damages cannot be overstated. Securing the assistance of a skilled attorney becomes a pivotal step toward navigating this complex terrain. An experienced attorney brings a wealth of legal knowledge to the table, adeptly guiding grieving families through the intricacies of survival damages. They play a crucial role in identifying and quantifying the damages the deceased would have incurred. Attorneys present a compelling case that reflects the true extent of the losses suffered. With a compassionate and thorough approach, an attorney helps articulate the deceased’s pain and suffering, medical expenses, and lost income, ensuring that the pursuit of survival damages aligns with the family’s pursuit of justice. By leveraging their expertise, an attorney becomes an invaluable ally in navigating the legal intricacies of wrongful death cases. Contact our Monsees & Mayer today to speak with an experienced attorney.