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.
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.
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:
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.
Under Texas law, only specific individuals have the standing to sue for wrongful death caused by medical malpractice. Those are as follows:
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.
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.
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.
The damages available in wrongful death claims for medical malpractice will vary based on the circumstances of each case but can include:
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).
Many variables determine how much a wrongful death claim for medical malpractice is worth. The most common factors considered are:
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.