Texas law recognizes two distinct types of claims for an event where someone dies: wrongful death vs. survival action. These claims differ in who they are filed on behalf of, what damages are being sought, and who those damages will be paid to. Still, in some circumstances, both can be pursued in the same lawsuit.
What is a Wrongful Death Claim?
If you have lost a loved one due to the negligence of another, one option is to file a wrongful death lawsuit. In such a case, the family is not actually suing for harm caused to their loved one – instead, they are suing for the harm that was caused to them as a result of the loss of the deceased person.
Among the damages a family can seek in a wrongful death lawsuit are:
- Loss of quality of life
- Loss of love and emotional support
- Loss of financial support
- Loss of companionship
- Loss of society
Under Texas law, a wrongful death claim can only be filed by spouses, children, and parents.
What is a Survival Action?
A second option that may be available to you is that of a survival action. The name can be confusing at first as the claim is actually filed for a person who has passed away, but understanding the purpose of the claim also helps to explain its title.
When a survival claim is filed on behalf of a deceased person, the victim’s family is essentially asserting that:
- The person died because of the defendant’s negligence.
- This negligence caused pain and suffering to the person before they died.
- Had the person survived, he or she would have been able to pursue legal action against the defendant to recover compensation for pain and suffering.
- The defendant should not be able to avoid liability for pain and suffering just because the person died.
- The pain and suffering damages should be paid to the deceased person’s estate.
In addition, a survival claim can also seek damages for medical costs associated with hospital stays and medical procedures procured prior to the victim’s death as well as funeral and burial expenses.
Under Texas law, a deceased person’s legal heir or estate representative can bring a survival action. In instances where there is no legal beneficiary to file a claim, relatives may pursue the action jointly.
Can I File Both a Wrongful Death Claim and a Survival Action in Texas?
Because the two statutes represent two distinct actions, they may be consolidated into a single lawsuit depending of the circumstances of the death. This means that the lawsuit would seek survival action damages on behalf of the decedent and wrongful death damages on behalf of the decedent’s loved ones.
However, in order for either of the claims to be successful, it is essential that the family speak with an experienced wrongful death attorney. Consulting with an attorney will allow you to understand the full scope of your rights, any potential obstacles your case might face, and how best to pursue legal action against those responsible for your loved one’s death.
Additionally, the attorney who is handling the wrongful death lawsuit and/or the survival action will also engage the services of a qualified probate attorney who will “open an estate”, ensuring that the wrongful death and survival claims are properly represented before the court.
Contact an Experienced Wrongful Death Attorney
If you have lost a loved one due to the negligence of an individual, company, or other entity, contact Thomas J. Henry. Our experienced wrongful death attorneys are available 24/7, nights and weekends to talk with you and your family about your potential case. At Thomas J. Henry, we offer a free case review, and you don’t owe a thing unless we win your case. Our results speak loudly of our success in obtaining successful verdicts, settlements, and judgments for our clients. Let us help you and your family recover the compensation you deserve.