How to Claim Pain and Suffering in an Arizona Survival Action

TL;DR

In Arizona, a survival action allows a deceased person’s estate to pursue the personal injury claim the individual could have filed if they had lived. This includes recovering damages for the conscious pain and suffering they experienced between the time of the injury and their death. To succeed, the estate’s court-appointed personal representative must file the lawsuit and provide substantial evidence, such as medical records and witness testimony, to prove the decedent was aware of their suffering. This claim is legally distinct from a wrongful death action, which compensates surviving family members for their own losses.

Key Highlights

Who Files: The personal representative of the decedent’s estate is the only party authorized to file a survival action.
What It Covers: The action seeks damages the deceased person incurred before their death, including medical bills, lost wages, and pain and suffering.
Legal Basis: Arizona Revised Statutes (A.R.S.) § 14-3110 explicitly allows a cause of action to survive a person’s death.
Crucial Element: You must prove the decedent was conscious and aware of their pain. Without proof of consciousness, a claim for pain and suffering will fail.
Key Distinction: A survival action compensates the estate for the decedent’s losses, while a wrongful death claim compensates family members for their own grief and financial losses.

Introduction

When a person suffers a catastrophic injury due to someone else’s negligence, the legal system provides a path to seek compensation. But what happens when that person succumbs to their injuries before a claim can be resolved? In Arizona, the personal injury claim does not necessarily die with the victim. State law provides a specific legal mechanism, known as a survival action, that allows the claim to live on, pursued by the deceased person’s estate. This ensures that a wrongdoer cannot escape civil liability simply because the person they harmed did not survive.

The legal foundation for this process is found in Arizona Revised Statutes (A.R.S.) § 14-3110, which states, “Every cause of action… shall survive the death of the person entitled thereto or liable therefor.” This statute is the cornerstone of survival actions in the state, making it clear that a defendant is still responsible for the harm they caused, including the victim’s final moments of suffering. It is critical to distinguish this from a wrongful death claim, governed by A.R.S. § 12-611, which creates a separate cause of action for surviving family members to recover for their own losses, such as loss of companionship and financial support.

Successfully securing compensation for pain and suffering within a survival action requires a focused and evidence-based approach. The entire case hinges on demonstrating what the decedent experienced from the moment of injury until their passing. This involves a detailed examination of medical documentation, witness accounts, and expert analysis to build a compelling picture of the victim’s conscious suffering. Understanding the legal requirements, the types of evidence needed, and the procedural steps involved is essential for the estate to achieve justice on behalf of the deceased.

Understanding the Core Difference: Survival Action vs. Wrongful Death

When a person dies due to another’s wrongful act or negligence, Arizona law permits two distinct types of legal claims to be filed: a survival action and a wrongful death claim. While they both arise from the same tragic event, they serve different purposes, compensate different parties, and are based on different statutes. Understanding this distinction is the first and most important step in pursuing compensation for a loved one’s pain and suffering.

What is a Survival Action?

A survival action is essentially the personal injury lawsuit the deceased person (the “decedent”) would have been able to file had they survived their injuries. The claim “survives” their death and is carried on by their estate.

Purpose: To recover damages that the decedent themselves incurred between the moment of injury and the moment of death.
Plaintiff: The personal representative of the decedent’s estate. This person is appointed by the probate court and acts as a fiduciary for the estate.
Damages Recoverable: The focus is on the decedent’s losses. This includes:
- Medical expenses for treatment received before death.
- Lost wages the decedent would have earned between their injury and death.
- The decedent’s conscious pain, suffering, and emotional distress.
Beneficiary: Any damages recovered become assets of the estate. These assets are then distributed to heirs according to the decedent’s will or, if there is no will, Arizona’s intestacy laws.
Governing Law: A.R.S. § 14-3110.

Think of it this way: the survival action steps into the shoes of the person who passed away and seeks compensation for the harm they personally endured.

What is a Wrongful Death Claim?

A wrongful death claim is a completely separate and new cause of action created by statute for the benefit of the decedent’s surviving family members. It does not compensate the estate for the decedent’s losses; instead, it compensates the family for their own losses resulting from the death.

Purpose: To compensate specific family members for the harm they have suffered because of their loved one’s death.
Plaintiff: The claim is brought by a statutory plaintiff, which can be the surviving spouse, child, parent, or the personal representative on behalf of these beneficiaries.
Damages Recoverable: The focus is on the family’s losses. This includes:
- The family’s pain, grief, sorrow, and mental anguish.
- Loss of the decedent’s love, companionship, comfort, and guidance.
- Lost financial support and services the decedent would have provided.
- The reasonable costs of funeral and burial expenses.
Beneficiary: The damages are paid directly to the statutory beneficiaries (e.g., the spouse and children), not the estate.
Governing Law: A.R.S. § 12-611 through § 12-613.

Why This Distinction Matters for Pain and Suffering

The separation between these two claims is critical when seeking damages for pain and suffering.

The Decedent’s Pain and Suffering: This can only be recovered through a survival action. It is a claim for the physical pain and emotional terror the deceased person felt before they died.
The Family’s Pain and Suffering: This (grief, sorrow, anguish) can only be recovered through a wrongful death claim. It is a claim for the emotional harm the family members are experiencing because of their loss.

It is common practice in Arizona for a personal representative to file both a survival action and a wrongful death claim at the same time, often within the same lawsuit. However, the damages sought are separated and allocated to the correct claim. Failing to understand this could mean that the estate misses the opportunity to recover significant compensation for the suffering the decedent endured in their final hours, days, or weeks.

Who Has the Authority to File a Survival Action in Arizona?

Not just anyone can file a survival action on behalf of a deceased person. Arizona law is very specific about who holds the legal authority to act for an estate. The right to initiate this type of lawsuit belongs exclusively to the personal representative of the decedent’s estate.

The Role of the Personal Representative

A personal representative is a person or institution appointed by a judge in the Arizona Superior Court’s probate division to administer a deceased person’s estate. This individual may also be called an “executor” if they were named in the decedent’s will, or an “administrator” if the person died without a will (intestate).

The personal representative has a fiduciary duty to act in the best interests of the estate and its beneficiaries. Their responsibilities include:

Gathering and inventorying the decedent’s assets.
Paying the decedent’s final debts and taxes.
Distributing the remaining property to the heirs or beneficiaries.
Pursuing any legal claims the estate may have, including a survival action.

Only after being formally appointed by the court and receiving “Letters of Administration” or “Letters Testamentary” does the personal representative have the legal standing to file a lawsuit on behalf of the estate.

The Probate Process and Its Connection to the Claim

Because a personal representative is required, filing a survival action is directly linked to the probate process. Before the lawsuit can even be started, a probate case must be opened in the county where the decedent resided.

Petition for Appointment: A family member or other interested party files a petition with the probate court to open an estate and be appointed as the personal representative.
Court Hearing: The court holds a hearing to review the petition. If a valid will exists, the court typically appoints the executor named in it. If not, the court appoints an administrator based on a priority list established by state law (usually starting with the surviving spouse, then adult children, then parents).
Issuance of Letters: Once appointed, the court issues official documents called “Letters” that grant the personal representative the authority to manage the estate’s affairs, including hiring an attorney and filing a survival action.

This probate step is a non-negotiable prerequisite. It is also time-sensitive, as the two-year statute of limitations for filing the personal injury claim continues to run while the probate case is being initiated. Any delay in opening the estate could jeopardize the ability to file the survival action on time.

What if No Will Exists?

If the decedent died without a will, the process is similar but follows Arizona’s laws of intestacy. An eligible person, such as a surviving spouse or adult child, must petition the court to be appointed as the estate’s administrator. The court will determine who has priority and is best suited for the role. Once appointed, this administrator has the same authority as an executor to pursue a survival action for the estate. The key is that court approval is always necessary to grant someone the legal power to act for the deceased.

Proving Pain and Suffering: The Evidence You Need

The most challenging aspect of a survival action is proving the decedent’s pain and suffering. Since the primary witness—the victim—is no longer able to testify about their experience, the personal representative must build the case using other forms of evidence. The central legal requirement is to demonstrate that the decedent was conscious for some period between the injury and their death.

Establishing “Conscious” Pain and Suffering

An award for pain and suffering is intended to compensate for the human experience of physical agony and emotional distress. Therefore, the law requires proof that the decedent was actually aware of that experience.

The Consciousness Requirement: If a person was killed instantly in a collision or was rendered immediately and permanently unconscious and remained in a coma until their death, the estate cannot recover damages for pain and suffering. This is because, from a legal standpoint, an unconscious person cannot perceive pain or experience fear.
Any Period of Consciousness Counts: However, if there is evidence that the decedent was conscious for even a brief period, the claim is viable. This could be minutes at the scene of an accident, hours in an ambulance or emergency room, or days and weeks in a hospital. The duration of the conscious suffering will directly impact the value of the claim.

Key Types of Evidence to Gather

To build a strong case for conscious pain and suffering, an attorney will seek to gather a wide range of evidence.

Medical Records: This is often the most powerful evidence. An attorney will scrutinize:
- Emergency Medical Services (EMS) Reports: Paramedic and EMT notes often describe the patient’s level of consciousness, verbal responses, and physical signs of pain at the scene.
- Emergency Room Records: Doctors’ and nurses’ notes detail the patient’s condition upon arrival, their responses to questions, and descriptions of their injuries.
- Hospital Charts and Nurses’ Logs: These records can provide a day-by-day or even hour-by-hour account of the patient’s state, including pain scores, requests for medication, and notes about their emotional state.
- Medication Administration Records: A record of powerful painkillers being administered is strong circumstantial evidence that the patient was experiencing significant pain.
Eyewitness Testimony: People who were with the decedent before their death can provide compelling testimony.
- First Responders: Police officers, firefighters, and paramedics can testify about what they saw and heard at the scene.
- Family and Friends: Relatives who were at the hospital can describe conversations they had with their loved one, signs of pain they observed (moaning, wincing), and any expressions of fear or anxiety.
- Hospital Staff: Nurses or doctors may recall specific interactions that demonstrate the patient’s awareness and suffering.
Expert Witness Testimony: A medical expert can play a crucial role. After reviewing all the medical records, an expert can offer a professional opinion on:
- The level of pain typically associated with the decedent’s specific injuries.
- Whether the medical evidence is consistent with a state of conscious suffering.
- The likely emotional and psychological distress (e.g., fear of dying) the person would have experienced.
The Decedent’s Own Words: Any direct evidence from the decedent is invaluable. This could include statements made to family members or first responders, text messages sent from the hospital, or even journal entries if the period of suffering was prolonged.

The Timeframe of Suffering

The duration of conscious suffering is a major factor in determining the value of the claim. A case involving someone who was conscious for 15 minutes before dying will be valued differently than a case where someone suffered in a hospital burn unit for three weeks before succumbing to their injuries. The personal representative’s attorney must meticulously document this entire timeline to present a full and accurate picture of the decedent’s final experience.

Calculating the Value of Pain and Suffering Damages

Placing a dollar value on a human being’s suffering is one of the most difficult tasks in the legal system. Unlike economic damages such as medical bills, which have a precise monetary value, pain and suffering are “non-economic” damages. There is no receipt or invoice for fear, agony, or despair. As a result, there is no simple calculator or formula to determine their worth. The final value is what a jury deems to be fair and reasonable under the specific circumstances of the case.

Why There Is No Simple Formula

Because pain and suffering are subjective, their valuation is inherently subjective as well. An insurance adjuster, a defense attorney, and a plaintiff’s attorney will all have different opinions on the value of a claim. The goal of the personal representative’s lawyer is to present evidence in a way that helps a jury understand the depth and severity of the decedent’s experience, justifying a substantial award.

Factors That Influence the Valuation

Attorneys, insurers, and juries consider several key factors when assessing the value of a pain and suffering claim in a survival action.

Severity and Nature of the Injuries: More severe, painful injuries naturally lead to higher damage awards. For example, the suffering associated with third-degree burns or multiple crushing fractures is typically valued more highly than that from a single broken bone.
Duration of Conscious Suffering: As discussed, this is a primary driver of value. A longer period of conscious pain and awareness of one’s impending death will result in a much higher valuation.
Degree of the Decedent’s Awareness: Was the decedent fully lucid and aware of their situation, or were they drifting in and out of consciousness? The more aware they were of their pain and peril, the stronger the claim for emotional distress damages.
Level of Emotional Distress: The claim covers more than just physical pain. It also includes emotional and psychological suffering like fear, anxiety, terror, and the knowledge of impending death. Evidence showing the decedent was frightened or expressed fear to loved ones can significantly increase the claim’s value.
The Defendant’s Conduct: While technically separate from compensatory damages, the egregiousness of the defendant’s actions can subconsciously influence a jury’s perception of what is a “fair” award.

Methods Used by Attorneys and Insurers

While no exact formula exists, legal professionals often use certain methods as a starting point for negotiations or trial preparation.

The Per Diem Method: This approach involves assigning a specific dollar amount for each day the decedent suffered, from the date of injury to the date of death. For example, an attorney might argue that the decedent’s suffering was worth $500 per day. If the person suffered for 30 days, the calculation would be $15,000. This method is more effective for longer periods of suffering.
The Multiplier Method: This is a more common, though still informal, method. It involves taking the total economic damages (like medical bills and lost wages) and multiplying them by a number, typically between 1.5 and 5. A lower multiplier (1.5 or 2) might be used for less severe cases, while a higher multiplier (4 or 5) would be reserved for cases involving extreme, prolonged, and conscious suffering. This is merely a guideline used in settlement talks, not a rule a jury must follow.
Precedent and Jury Verdict Research: Experienced attorneys heavily rely on research into what juries in the same jurisdiction (e.g., Maricopa County, Pima County) have awarded in similar survival action cases. This data provides a realistic range for what a claim might be worth at trial and is a powerful tool in wrongful death settlement negotiations.

The Legal Process and Critical Deadlines

Pursuing a survival action involves navigating a formal legal process with strict rules and deadlines. Missing a key deadline can result in the complete loss of the right to file a claim, regardless of its merit. It is essential for the personal representative to act promptly and work with an attorney who understands these procedural requirements.

The Arizona Statute of Limitations

The most important deadline is the statute of limitations, which is the time limit for filing a lawsuit.

The Two-Year Rule: In Arizona, the statute of limitations for most personal injury and wrongful death claims is two years from the date of the injury-causing event (A.R.S. § 12-542). For a survival action, this clock generally starts ticking on the day the negligent act occurred, not the day the person died.
No Tolling for Grief: The law does not pause the clock for a family’s grieving period or for the time it takes to open a probate case. The two-year deadline is firm. This creates a sense of urgency to begin the legal process as soon as possible.
Exceptions are Rare: While there are some very narrow exceptions that can extend this deadline, it is extremely risky to rely on them. The safest course of action is to assume the two-year deadline is absolute and plan accordingly.

Steps in Filing the Claim

The process of bringing a survival action from start to finish involves several distinct stages.

Consult with an Attorney: The first step for the family should be to speak with an experienced personal injury attorney who handles survival and wrongful death cases. The attorney can advise on the viability of the claims and guide them through the next steps.
Open a Probate Estate: As previously detailed, a probate case must be opened in the appropriate Arizona Superior Court to have a personal representative formally appointed.
Investigation and Evidence Gathering: Once hired, the attorney for the estate will conduct a thorough investigation. This includes obtaining accident reports, interviewing witnesses, collecting all medical records, and hiring experts (such as accident reconstructionists or medical professionals) as needed.
Filing the Lawsuit: The attorney will draft a formal legal document called a “Complaint” and file it with the court before the statute of limitations expires. The Complaint names the estate as the plaintiff and the at-fault parties as defendants, and it outlines the legal basis for the survival action.
Litigation: Once the lawsuit is filed, the litigation process begins. This includes:
- Discovery: Both sides exchange information and evidence. This involves written questions (interrogatories), requests for documents, and depositions (sworn testimony taken out of court).
- Settlement Negotiations: Most cases are resolved through a settlement before reaching trial. The attorney will negotiate with the defendant’s insurance company to try to reach a fair agreement.
- Trial: If a settlement cannot be reached, the case will proceed to a trial where a jury will hear the evidence and decide both liability and the amount of damages to award the estate.

Dealing with Insurance Companies

The claim will almost always be defended by the at-fault party’s insurance company. Insurance adjusters and their lawyers are experienced in minimizing payouts. They will often challenge the claim for pain and suffering by arguing that the decedent was not conscious or that the evidence of suffering is insufficient. This adversarial relationship is why having a skilled attorney and irrefutable evidence is so important. An arizona wrongful death attorney can counter these tactics and advocate effectively for the full value of the estate’s claim.

Other Damages Recoverable in a Survival Action

While pain and suffering is often the largest component of non-economic damages in a survival action, it is not the only type of compensation the estate can seek. The goal of the action is to recover all losses the decedent incurred as a result of their injuries before their death. This includes significant economic damages that can provide a financial foundation for the estate and its heirs.

Beyond Pain and Suffering

The personal representative has the right and the duty to pursue compensation for every loss the decedent suffered. A comprehensive claim will include a detailed accounting of all economic and, where applicable, punitive damages. These damages are sought in addition to, not instead of, the compensation for conscious pain and suffering.

Recoverable Economic Damages

Economic damages are tangible, out-of-pocket losses that can be calculated with relative precision using bills, receipts, and financial records.

Medical Expenses: The estate is entitled to recover the full cost of all medical care the decedent received for their injuries. This includes:
- Ambulance and emergency transportation costs.
- Emergency room and hospital bills.
- Fees for surgeries, diagnostic imaging (X-rays, CT scans), and lab work.
- Costs for medications, physical therapy, and any other treatment provided before death. The estate can claim the full billed amount of these services, not just the portion paid by health insurance.
Lost Wages: If the decedent was employed and unable to work between the time of their injury and their death, the estate can recover the income they lost during that period. This is calculated based on their wage or salary records. For self-employed individuals, it can be proven through business records and past income history. These are wages the decedent would have earned had they not been injured.

Punitive Damages

In some exceptional cases, an Arizona survival action may include a claim for punitive damages. Unlike compensatory damages (both economic and non-economic) which are meant to make the plaintiff whole, punitive damages are intended to punish the defendant for egregious conduct and deter similar behavior in the future.

The Standard for Punitive Damages: Punitive damages are not available in every case. They are reserved for situations where the plaintiff can prove, by “clear and convincing evidence,” that the defendant acted with an “evil mind.” This means the defendant either intended to cause harm or acted with a conscious and deliberate disregard of an unjustifiably high risk of significant harm to others.
Examples of Applicable Conduct: This high standard is often met in cases involving:
- A drunk driver with an extremely high blood alcohol content and a history of prior DUIs.
- A company that knowingly sold a dangerously defective product.
- An individual who intentionally assaulted the decedent.

If the defendant’s conduct rises to this level, the estate may be able to secure a punitive damages award in addition to all other compensation. This can substantially increase the total recovery in a survival action.

Conclusion

Securing compensation for a loved one’s final pain and suffering through an Arizona survival action is a complex legal undertaking, but it is a vital tool for holding negligent parties fully accountable. This legal action allows the decedent’s estate to recover for the conscious agony and distress the victim endured, ensuring that this profound harm is not ignored by the justice system. It stands as a claim separate from a wrongful death action, which addresses the family’s grief, and focuses squarely on the damages the deceased personally suffered.

Success hinges on a few critical elements: the prompt appointment of a personal representative, a deep understanding of the evidence needed to prove conscious suffering, and strict adherence to Arizona’s two-year statute of limitations. The evidence, ranging from detailed medical charts and EMS reports to the poignant testimony of family and first responders, must be meticulously gathered and presented to paint a clear picture of the victim’s final experience. Without this proof, the claim for non-economic damages cannot succeed.

The legal and emotional weight of this process can be significant for a grieving family. The procedural requirements of the probate court, combined with the adversarial nature of a personal injury lawsuit, demand professional guidance. If your family is facing this difficult situation, the most important step you can take is to consult with an Arizona personal injury attorney who has specific experience with survival actions. Time is a critical factor. Acting quickly to preserve evidence and meet legal deadlines is essential to protecting the estate’s rights and honoring your loved one’s memory by pursuing the justice they deserve. Contact us for free consultation today.