In Louisiana, there
are two components to a case involving
the death of a plaintiff, the
survival action and the wrongful
death action. The survival action
represents the pain and suffering
and mental anguish that the victim
suffered before the death. The
wrongful death action is an action
by the victim's heirs for their
own mental anguish and/or loss
of support as a result of the
death of their loved one.
Louisiana law sets
forth a specific law on who can
legally recover for the wrongful
death of a loved one. Generally,
if a married person who has children
dies, the spouse and the children
have a claim for wrongful death.
The spouse has the survival action.
The children cannot also have
the survival action since it represents
the victim's suffering not their
If a person dies
without a spouse, then the children
have the survival and wrongful
death actions. If a person dies
without a spouse or children,
then the surviving father and
mother of the deceased may bring
the actions. If the deceased left
no spouse, children and no surviving
parents, then his surviving brothers
and sisters inherit the actions.
Thus, the parents
of a deceased victim do not have
the right to bring a claim for
the wrongful death of their child
if the deceased is survived by
a spouse or children.
In a medical malpractice
case, the $500,000 cap on damages
is the total amount recoverable
regardless of the number of people
making the claim. Thus, in the
case where a deceased is survived
by a spouse and seven children,
the $500,000 is split among all
of them even though their total
losses far exceed that amount.
Since the only damages
not covered by the cap are the
past and future medical expenses,
if a patient dies as a result
of the medical malpractice, the
surviving heirs are deprived of
the only amount outside the cap.
This is particularly harsh when
the deceased is a wage earner
and the family depended upon that
income for support.
Louisiana does not
allow the recovery of punitive
damages in medical malpractice
cases and virtually all other
personal injury cases (except
DWI). Only damages to compensate
the victim for their actual losses
and mental anguish are generally
recoverable. Thus, even in a wrongful
death case not covered by the
medical malpractice cap (an auto
accident for example), the death
of a loved one, excluding the
loss of wages component, is only
worth between $150,000 and $500,000.
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