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Dec 192014
 

In the aftermath of a tragic accident like a work accident, car accident or medical malpractice, surviving loved ones are often too consumed with grief to even contemplate filing a lawsuit. However, Pennsylvania law does not allow for the applicable statute of limitations to be tolled or stalled in order to give surviving family members time to grieve.

Therefore, it is important for surviving family members to seek legal counsel to rule out a viable wrongful death and/or survival lawsuit. These are two separate types of lawsuits, and the claims for financial compensation payable under each lawsuit are different. Read a legal explanation of these two types of lawsuits.

When most people refer to a wrongful death action or lawsuit, they are usually referring to both a wrongful death action and a survival action. These are the two types of lawsuits surviving family members may bring when the death of a loved one occurred due to negligence of another party.

What is the Statute of Limitations in a Pennsylvania Wrongful Death & Survival Action?

Under Pennsylvania law, wrongful death and survival actions must generally be brought within 2 years of either the date of death or the date of the accident/injury. Depending on the type of action and the facts of the underlying case, the applicable statute of limitations period may differ. Therefore, in most Pennsylvania death actions, determining the actual statute of limitations period will require legal advice of a qualified injury and accident lawyer.

For a wrongful death action, the statute of limitations clock will usually begin ticking on the date of the death. Therefore, as a general rule, a surviving spouse, child, etc., would have 2 years from the date of the death to file a wrongful death action. However, for a survival action, the statute of limitations clock begins ticking on the date of the accident/injury, not the date of the death. That’s because of the fundamental differences between the two types of actions.

In addition, it is important to note that the statute of limitations in a death action can be complicated by medical malpractice issues, especially in failure to diagnose medical malpractice cases. For instance, in a death action where the deceased family member dies as a result of their doctor’s failure to diagnose cancer, the applicable statute of limitations period for both a wrongful death and a survival action will depend on when the individual could have reasonably discovered the misdiagnosis.

Historically, in Pennsylvania accident-injury cases which result in death, there has been some confusion over the two types of actions. This is due in large part to the fact that the laws providing for death actions do not directly spell out what claims are allowed for damages. See Incollingo v. Ewing, a 1971 Pennsylvania Supreme Court case.

In Pennsylvania accident-injury death lawsuits, there are two separate laws which come into play: the Wrongful Death Act and the Survival Act. Generally, the Wrongful Death Act, 42 Pa.C.S. §8301, provides for the financial recovery of the administrator’s expenses and financial losses to the immediate family. On the other hand, the Survival Act, 42 Pa.C.S. § 8302, provides for other losses caused by the death of the loved one.

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