Minnesota is in the minority of states that does not recognize what is usually called “a survival action.” A survival action is where a representative is allowed to file or maintain a personal injury or medical malpractice claim on a deceased person’s behalf even though they have died, and recover the damages normally awarded in the case if the person had brought it themselves while living. In survival actions in most states, a representative can recover for a decedent’s conscious pain and suffering and other noneconomic harms.
But in Minnesota, when a person dies any personal injury claim that they might have dies with them, except to the extent that a recovery can be made for special damages like medical bills and lost earnings. Minn. Stat. § 573.02 subd. 2. So when a claimant dies, the only recovery possible for an injury to a decedent is governed by the wrongful death statute, Minn. Stat. § 573.02. The recovery in a wrongful death action is limited to “the pecuniary loss resulting from the death.” Id. “Pecuniary” means money – so the damages in a wrongful death arise out of the monetary value lost by the next of kin. Further, for anyone who dies of unrelated causes, a personal injury case or medical negligence case will be gutted. In a legal system where it can take years to arrive at a judgment, this phenomenon can further incentivize delays and scorched earth litigation that might draw litigation out long enough to outlive a sick or elderly plaintiff.
The lack of a survival action in Minnesota has a terrible impact on victims of nursing home malpractice. Elderly nursing home residents have a limited life expectancy and in cases of horrific abuse, cannot be reasonably expected to pursue a personal injury or medical malpractice claim to conclusion within their remaining lifetime. This means that there can never be any recovery for pain and suffering associated with substandard care and intentional abuse.