Survival Action Lawyers in Summerville

South Carolina's Court of Appeals listed the damages a survival action can include in two opinions filed in 2000, Scott v. Porter and Welch v. Epstein. Both name medical, surgical and hospital bills. Both also name conscious pain, suffering and mental distress. A lawyer measures each item across the time between the injury and the death.

When a person lives through a severe wreck, those same losses form his or her own claim. Frost Law Group handles catastrophic injury claims for survivors, and an estate carries that claim forward if the person later dies.

The statute's second list reaches personal property. Picture a pickup titled to the person who died, totaled on Orangeburg Road with a phone and a toolbox in the cab. The claim for that damage belongs to the estate, and the personal representative presents it with the injury claim. The personal representative checks the title and any loan papers first, since a co-owner or a lender may hold part of the interest.

Section 15-5-90 runs in both directions. Claims survive "both to and against" the representative of a person who has died. So when the driver who caused a crash also dies, the injured person's claim can proceed against that driver's estate. Frost Law Group looks up whether a probate court has opened that estate, and in which county, before any claim goes out.

The Probate Code's deadlines for presenting claims against an estate have an exception here. Section 62-3-803(d)(2) says those limits do not cut off a proceeding to establish the dead driver's liability, up to the limits of that driver's liability insurance. Other deadlines still matter, including the three years Section 15-3-530(5) allows for injury claims, so a lawyer checks each one against the dates in the file.

People at the scene see the injured person before any doctor does. A driver who stops, a firefighter and an officer can each say whether the person spoke, moved or cried out. Frost Law Group can take their names from the collision report and ask what they saw, since recall of words and sounds fades with time. The Summerville Police Department's Traffic Safety Unit counts officers with training in technical collision investigation and reconstruction. Their work can help place each witness account on a timeline.

Medical records can prove suffering when no witness heard a word. In Scott v. Porter, nurses' charts described a toddler as irritable, restless in sleep, vomiting and pulling at his monitors. A nurse also heard him say he did not feel good and ask his mother to hold him. The court treated that as competent evidence of suffering. It added that a jury may infer conscious pain from proof like it.

Ambulance Crew Notes on the Way to the Hospital

An ambulance crew's patient care report may hold the first medical description of the person after the crash. It can record whether the person answered questions, complained of pain or went quiet during the ride. The ambulance service keeps that report apart from the hospital chart, so Frost Law Group can request it separately.

Emergency Department and Transfer Hospital Charts

Every emergency department that treated the person keeps its own chart, and a transfer to a second hospital adds another. Each chart usually carries a time stamp on every entry. Those stamps let the estate line up the chart with the crash report and the ambulance notes. Two kinds of entries tend to speak to awareness.

Triage and Nursing Entries

Triage notes record how the patient looked and acted on arrival. Nursing entries then follow the patient through the shift. Some may note that the person was calling out, asking for family or pulling at lines. Read in time order against the crash report, those entries can show when the person was last aware.

Physician Orders for Pain Medicine

An order for pain medicine can show that a doctor believed the patient was in pain at that moment. A later note on how the patient responded to the dose can add to that record. Read together, the order and the nearest nursing note show what the staff saw.

A Physician's Account of What the Body Went Through

Scott also relied on a physician who described how the child's brain swelled until his breathing stopped. The court said that testimony let the jury infer pain that came before the coma. After a crash, a treating physician or other medical witness can walk through a similar sequence for a head, chest or internal injury. Whether that account supports conscious pain turns on the injury and the chart, which a lawyer reviews first.

Section 43-7-420 covers care Medicaid paid for. It treats the right to recover those payments from a liable party as assigned to the state Medicaid agency, the Department of Health and Human Services. When Medicare pays for crash care, it pays conditionally. Federal law then entitles the program to reimbursement from the settlement, judgment or award that follows. Frost Law Group identifies both programs' claims early, since either one can reduce what the estate keeps.

Section 15-5-100 allows reasonable funeral expenses in either the survival action or the wrongful death action, but only in one of them. In Carson, the estate presented its funeral and burial receipts in the survival action. Frost Law Group collects the funeral home contract, the burial or cremation charges and the cemetery receipts, along with proof of who paid each one. A family paying for a headstone or a reception should ask before assuming those costs count.

The choice of claim changes who receives the money. Funeral costs placed in the survival action go to the estate. The same costs placed in the wrongful death action go to the statutory beneficiaries. The right choice depends on the estate's debts and on who inherits under the will, and a lawyer weighs both before filing.

Section 62-3-703(c) gives an appointed representative the same standing to sue on surviving claims that the person held just before death. Section 62-3-715(20) then allows the representative to prosecute claims that protect the estate. Under Section 62-3-703(a), the representative is also a fiduciary, meaning someone bound to act for the benefit of others. The relative who serves makes each decision with heirs, creditors and will beneficiaries in mind, since all of them hold an interest.

Section 62-3-715(24) lets a personal representative compromise a claim for pain and suffering, or any claim that survives to the estate. It adds a condition, which is the approval of the probate court or the circuit court. Section 15-51-41 applies the same approval rule to both death claims, and it lists a federal district court as a third option. Frost Law Group can prepare the petition, and approval rests with the court alone.

A survival recovery belongs to the estate, and Section 15-51-42(B) has the settlement petition list the appropriate creditors and the amounts they claim. Once appointed, a representative publishes a notice to creditors once a week for three successive weeks under Section 62-3-801. Creditors then have eight months from the first notice to present claims. Section 62-3-803 generally bars claims that arose before the death unless presented within one year after it, or sooner if the notice period ends first. How those rules touch a given recovery depends on the estate's debts, which a lawyer reviews line by line.

Funeral and Administration Costs in the First Class

Section 62-3-805 ranks claims when an estate cannot pay all of them in full. The first class holds the costs and expenses of administering the estate and reasonable funeral expenses. In that situation, an unpaid funeral home bill ranks ahead of taxes, medical debts and ordinary accounts. Frost Law Group checks who paid the funeral home before the estate accepts any settlement.

Last-Illness Medical Bills in the Third Class

The third class covers reasonable and necessary medical, hospital and personal care expenses of the person's last illness. It also reaches pay for people who attended the person before death. Care between a fatal crash and the death may fit that description. The same hospital charge can then appear twice, once as survival damages sought from the at-fault driver and once as a debt the estate owes. The fourth class names medical assistance paid under the state's Medicaid plan, among debts other state laws prefer.

Section 62-3-703(a) directs the representative to settle and distribute the estate under a probated will and the Probate Code. Survival money follows that route once the estate's claims are resolved. Picture a widower who left a will giving everything to his brother. The survival recovery would pass to that brother, while his children would stand first for the wrongful death recovery. The two recoveries can reach different people, so the split matters early.

With no will, the intestacy rules in the Probate Code take over. Section 62-2-102 gives a surviving spouse the entire estate if the person left no descendants, and half if descendants survive. Section 62-2-103 sends the rest, or everything when no spouse survives, to the descendants. If there are none, the parents come next. Frost Law Group works through that order with the family, since the survival money follows it after the estate's claims.

A passenger car wreck and a tractor-trailer crash raise different questions about fault, yet the survival claim works the same way in each. Frost Law Group handles wrongful death cases from car wrecks and fatal tractor-trailer crash cases. In either one, the firm adds the survival claim when the person lived after the impact. The proof of that interval comes from the same places, including witnesses, ambulance notes and hospital charts.