When an auto accident or medical malpractice incident results in a death, grieving family members are oftentimes left facing a litany of financial and legal questions that can be emotionally taxing in their own right for months or years thereafter. In cases where a death is caused by the negligence of another, Ohio law recognizes two related but distinct causes of action. The first, known as a “survival” or “survivorship” claim, as set forth in Ohio Revised Code Section 2305.21. These cases encompass those personal injury damages that the decedent would have been entitled to personally before passing away. For instance, in situations where a person injured in an auto accident survived for a period of time before succumbing to their injuries, a survivorship case resulting therefrom could recover the medical expenses incurred prior to death, conscious pain and suffering during this time, and other non-economic damages for “fear of impending death.” These survivorship claims would be subject to the standard statute of limitations dates under Ohio law, i.e. two years from the date of the incident for most auto, slip and fall, and product liability claims; and one year from the date of accrual for most medical negligence situations.
The second cause of action that can arise from this situation is a “wrongful death” claim, which is provided in Chapter 2125 of the Ohio Revised Code. These cases are brought for the benefit of the surviving spouse, children, parents, and “other next of kin” of the deceased individual. Unlike survivorship claims, the damages recoverable during a wrongful death case would include the surviving family members’ loss of support and services from the decedent, their loss of comfort, care, guidance, love, companionship, etc., the loss of prospective inheritance, and the mental anguish resulting from the passing of a loved one. For these claims, the statute of limitations deadline to file a lawsuit is two years from the date of death, regardless of the nature of the underlying tort.
Both of these kinds of claims can only be brought by a personal representative of the person’s estate. This means that only an executor (in cases where the decedent left a will) or an administrator (when there was no will) who has been appointed by the local probate court has the authority to retain counsel and pursue the claims on behalf of the family. In the event of a recovery, the proceeds from a “survivorship” claim become additional assets of the estate and are distributed pursuant to the terms of a will (if any) or standard inheritance laws. Wrongful death claim recoveries, on the other hand, do not become part of the estate itself. Rather, in those cases, the probate court will have jurisdiction to allocate any such recovery among the surviving family members eligible to receive awards under Chapter 2125.If you or some you know has lost a loved one due to an accident or the negligence of another, the attorneys at Rourke & Blumenthal are here to help. Please contact us for a free consultation.