Surviving family members can file mesothelioma lawsuits after the death of a loved one, regardless of whether they filed a personal injury lawsuit before they passed away.
More than 80% of mesothelioma cases are caused by exposure to asbestos. In many cases, that was due to their employer’s negligence. Surviving victims and surviving families have the right to compensation.
In this guide, you’ll learn the difference between a personal injury lawsuit and a mesothelioma wrongful death claim, and the circumstances under which there can be both.
Understanding Wrongful Death vs Personal Injury Mesothelioma Cases
Personal Injury Lawsuits
Living patients of mesothelioma file personal injury lawsuits. They seek compensation for the damages they’ve suffered, such as medical bills, future treatment costs, lost wages, and reduced earning capacity. They also should cover damages such as pain, suffering, and the ‘loss of enjoyment of life’ for the entire family.
Mesothelioma Wrongful Death Claims
Surviving family members file mesothelioma wrongful death lawsuits after the death of a loved one. Just like a personal injury claim, they are filed against an employer for their negligence.
The claim seeks compensation for the family’s losses, rather than the patient’s injuries. This includes funeral and burial expenses, the loss of financial support, the loss of companionship, and the family’s suffering.
Statute of Limitations: Wrongful Death vs Personal Injury Mesothelioma Lawsuits
The statute of limitations is the period of time during which a lawsuit can be filed. After it expires, it’s no longer possible to file it. They vary by state, but we’ve listed the jurisdictions with the highest asbestos exposure cases below.
Asbestos trust funds also have limits on when to file, but these are set by the trust itself, not by state law.
Deadline on Mesothelioma Personal Injury Lawsuits
The statute of limitations for mesothelioma personal injury cases begins upon diagnosis – and not when the exposure actually occurred. This filing window is generally short (1-3 years). Here is a look at some of the most affected states:
- Texas: Two years from when mesothelioma was diagnosed or should have been discovered.
- California: One year.
- New York: Three years.
- Pennsylvania: 2 years.
Deadline of Mesothelioma Wrongful Death Claims
- Texas: Two years from the date of death.
- California: One year from the date of death.
- New York: Two years from the date of death.
- Pennsylvania: 2 years from the date of death.
What Happens When a Patient Dies During a Pending Personal Injury Case?
If the claimant dies while a personal injury lawsuit is still pending, it usually does not end. Instead, it splits into two parts: the survival actions and a wrongful death claim.
This is known as ‘Dual Recovery’ and seeks two distinct categories of damages, not double payment for the same damages.
Survival Actions
A survival action is the term for a personal injury case that continues after the claimant’s death. The difference is that the surviving family or estate now pursues it.
It still seeks compensation for the damages suffered before and up until the death.
Wrongful Death Addition
After a death, the surviving family can also start a wrongful death claim without impacting the existing survival action. The funds can help them recover damages related to the death, such as funeral expenses and the loss of financial support.
Who Can File a Mesothelioma Wrongful Death?
Most states allow surviving close family members to make a wrongful death claim in mesothelioma cases, but sometimes it can be a court-appointed personal representative of the estate.
- Texas: The surviving spouse, children, and parents may file.
- California: A broader group, including those who would inherit the settlement under intestacy laws.
- New York: The personal representative of the estate must pursue the claim.
- Pennsylvania: The personal representative of the estate must pursue the claim.
Why Timing Matters in Mesothelioma Personal Injury Claims
Starting a personal injury claim ASAP after a Mesothelioma diagnosis is highly advised. As previously stated, you must file a personal injury claim within the Statute of Limitations of the patient’s state.
Also, when an individual passes away before any claim is made, the chance to recover damages from the personal injury claim is gone (and only a wrongful death claim is possible).
Multi-State Filing Option
Many patients and families have the right to make multiple claims across different jurisdictions. This can be the case if the patient worked across multiple states or if the company is incorporated in another state. Your mesothelioma law firm of choice will help you determine the best legal route for you and your family.
File a Personal Injury or Wrongful Death Claim for Mesothelioma with Shrader & Associates, L.L.P.
If your loved one has suffered from Mesothelioma, your family deserves compensation to cover the damages and suffering it has endured.
Shrader & Associates, L.L.P. has secured settlements and represented asbestos-exposed victims nationwide for over 24 years. Our personalized service, resources, and mesothelioma expertise mean we can help you choose the optimal legal route, with no upfront costs.
We welcome you to contact us for a free consultation at 866-262-8170 or via our online contact form.
FAQs on Personal Injury vs. Wrongful Death Claims in Asbestos Cases
1. If my spouse files a personal injury lawsuit but then passes away, is the case over?
No. In most cases, the personal injury lawsuit remains active (and becomes a ‘survival action’).
2. Can I file a wrongful death claim even if my loved one never pursued legal action while alive?
Yes. A wrongful death claim is independent from a personal injury lawsuit and has a separate Statute of limitations deadline.
3. Is it selfish to encourage my sick family member to file a lawsuit?
No. They are entitled to this money as victims of another’s negligence. There are specific laws set up precisely for people like them (and even trusts), showing that this is a serious matter that deserves compensation.
A settlement can also help them cover medical bills and provide critical help to them and their family.
4. What if we’re not sure which state to file a mesothelioma claim in?
This is a common question, as exposure may have occurred decades ago, and many people and companies move around. Our team can help review your case and determine the optimal state in which to file a claim.
5. Can we file a personal injury claim after the victim has died?
No, sadly not. However, if the personal injury claim was already active before their death, then it continues as a Survival Action.