Serving Justice

Filing a Wrongful Death Lawsuit for Medical Malpractice

March 30, 2022Wrongful Death

Unfortunately, the medical professionals we entrust with our health sometimes make preventable and fatal mistakes. When medical negligence is the cause of a patient’s death, their surviving loved ones have the right to seek compensation by filing a wrongful death lawsuit. 

What Constitutes Wrongful Death in Texas?

Texas defines wrongful death as when a person is killed, or a fetus is unable to be born alive as a result of an injury caused by another party’s “wrongful act, neglect, carelessness, unskillfulness, or default” (Tex. Civ. Prac. & Rem. Code § 71.002(b)). In other words, it is a situation where the deceased would have been able to file a personal injury lawsuit had they survived. When that is the case, the victim’s family members have the right to file a wrongful death lawsuit. Besides medical malpractice, wrongful death claims commonly arise from car accidents, workplace accidents, defective products, and dangerous property conditions. 

Who Gets the Money in a Wrongful Death Lawsuit in Texas?

Settlement money or awarded compensation in a wrongful death lawsuit for medical malpractice is intended to go to the deceased’s surviving spouse, children, parents, or estate. If there is a will, the money will go to the beneficiaries listed in it. When the deceased does not have a will, the money is dispersed under Texas’s intestate succession laws. Here is a general overview: 

  • If the deceased was married and did not have surviving children, parents, or siblings, the entire award will go to the spouse. 
  • If there are children but no spouse, the entire settlement will be divided equally among the children.
  • If there is a spouse and children, the spouse and children will share the proceeds. 
  • If there are parents, but no spouse, children, or siblings, the parent inherits everything.
  • If there are siblings, but no spouse, children, or parents, the siblings will receive the money. 

Various factors will determine the size of each party’s share. However, it is primarily up to the surviving family members to distribute a settlement themselves. On the other hand, if the case goes to trial, it will be up to the jury to decide how to split the proceeds. 

Who Has Standing to Sue for Wrongful Death in Texas?

Under Texas law, only specific individuals have the standing to sue for wrongful death caused by medical malpractice. Those are as follows: 

  • The deceased’s spouse;
  • Children of the deceased (including legally adopted children), or
  • The deceased’s parents (including adoptive parents)

Under the Texas Wrongful Death Act, siblings, grandparents, and other family members cannot pursue a wrongful death claim. However, if the surviving spouse, children, or parents fail to file a wrongful death claim within three months of their loved one’s death, the personal representative or administrator of the deceased’s estate has the right to do so. An exception to that rule is if all surviving family members who have the standing to sue agree and request that one not be filed. 

How Long Do You Have to File a Wrongful Death Lawsuit in Texas?

Each state has its own law that governs how long surviving family members have to file a wrongful death lawsuit, known as the statute of limitations. In Texas, a wrongful death lawsuit must be filed within two years of the victim’s death. If a case is not filed before this deadline, a judge may dismiss the complaint, and you will lose your ability to recover compensation. However, there are a few exceptions. 

  • If the deceased victim was an only parent to a minor or if both parents of a minor are wrongfully killed, the statute of limitations is “tolled” or delayed until the child turns 18. Once the child turns 18, the two-year deadline will begin. 
  • If the death of a loved one isn’t determined to have been due to negligence until much later, the statute of limitations may be extended. This exception often applies to wrongful death caused by medical malpractice. For instance, if a loved one dies and it is not learned until years later, it was the result of a doctor prescribing the incorrect drug. 

Due to the deadline and these exceptions, it is always best to consult an attorney to check your legal options. Two years can seem like a long time, but it is almost always better to start the process right away. The longer you wait, the increased risk that critical evidence will disappear and witnesses’ memories will fade, impacting your ability to hold the at-fault party accountable. 

What Damages Can Be Recovered in a Wrongful Death Claim for Medical Malpractice?

The damages available in wrongful death claims for medical malpractice will vary based on the circumstances of each case but can include: 

  • Medical bills caused by the accident which led to the deceased’s death;
  • Funeral, cremation, or burial expenses;
  • Loss of the deceased’s expected income; 
  • Loss of benefits;
  • Estate administration expenses
  • Reduction in the inheritance suffered by surviving children;
  • Loss of parental guidance;
  • Loss of support and services that the victim provided;
  • Loss of society, companionship, comfort, guidance, and advice.
  • Compensation for the conscious pain and suffering the deceased endured due to their injuries before their death.
  • Interest on top of the damages awarded, which are calculated from the date of death. 

In some cases, punitive damages may also be awarded if the at-fault party’s actions were extremely reckless or egregious. Unlike other types of compensation, punitive damages are intended as a punishment for the defendant (at-fault party). 

How Much is a Wrongful Death Lawsuit for Medical Malpractice Worth?

Many variables determine how much a wrongful death claim for medical malpractice is worth. The most common factors considered are:

  • The deceased’s past financial contributions.
  • The deceased’s life expectancy at the time of death.
  • The deceased’s health prior to their death.
  • The deceased’s age, habits, and occupation.
  • The number of minor children the deceased had. 
  • The potential benefits and future earnings of the deceased.
  • The percentage of financial support the spouse relied on. 
  • The type and severity of the accident.
  • Whether the deceased was actively involved in their community.
  • The strength of evidence against the defendant.
  • The defendant’s degree of negligence.
  • Whether the deceased was partially at fault.

These factors can either increase or decrease a potential settlement. For example, if a wrongful death case is filed for the loss of a young parent of minor children who had a surviving spouse and was not at all to blame for their death, the settlement value will be much larger. In contrast, a case’s value would be far less if the victim was elderly, had no children, and was 50 percent at fault for the incident of medical negligence which contributed to their death.