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Frequently
Asked Questions
About Wrongful Death Claims |
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- What
is a "wrongful death" claim?
- How
is a "wrongful death" claim different from a "survival
action?"
- Who
can file a wrongful death case?
- Who
can file a survival action?
- What
types of damages may be recovered in a wrongful death case?
- What
types of damages may be recovered in a survival action?
- What
is the first step in pursuing a wrongful death or survival action?
- What
if I am told by an attorney that I do not have a good case?
- What
about the costs involved in pursuing a case?
- How
long will a wrongful death case take?
- When
must one make a claim?
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1.
What
is a "wrongful death" claim? |
Answer:
A "wrongful death" claim is a statutory cause of action that
may be brought on behalf of a surviving spouse, children, and
parents of a decedent to compensate them for the losses they sustained as
a result of the wrongful death of their family member. The
"wrongful" act that resulted in death may have been
intentional, reckless, or negligent as long as it is of the character that
would have permitted the decedent to maintain an action for injuries
had death not resulted. [Next
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2.
How is a "wrongful death" claim different from a "survival
action."
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Answer:
Whereas a "wrongful death" claim seeks to recover
compensation for the damages sustained by the surviving spouse, children
and parents, Texas law also provides that a "survival action"
may be brought to recover damages sustained by the decedent. The
decedent's claims for personal injuries arising from the wrongful act that
resulted in death are not extinguished by the death. Instead,
they survive to and in favor of the estate, heirs, and legal
representatives of the decedent. Survival actions are typically
filed in conjunction with wrongful death claims. [Next
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3.
Who
can file a wrongful death case? |
Answer:
Wrongful death claims may be filed by the surviving statutory
beneficiaries, or the decedent's personal representative. The
surviving statutory beneficiaries include the surviving spouse, children,
and parents of the deceased. [Next
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4.
Who
can file a survival action? |
Answer:
If there is a legal representative charged with administration of the
estate, the representative is the appropriate person to bring the survival
action. If there is no legal representative, all of the heirs may
bring the survival action jointly on behalf of the estate. [Next
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5.
What types of damages may be recovered in a wrongful death case? |
Answer:
Recovery by parents:
Parents may recover for the loss of companionship and society of their
child as well as for mental anguish caused by the death of their child.
If the decedent was a minor child, the parents may recover the value
of the child's services from the time of death until the date the child
would have reached the age of majority, less the cost of the child's
support, education, and maintenance during the period of minority, plus
the value of any financial contributions that the child in reasonable
probability would have made to the parents after the child reached the age
of 18.
The parents of an adult child may generally recover the value of future
financial contributions that the deceased child in reasonable probability
could have been expected to make to the parent.
Recovery by spouse:
A surviving spouse may recover damages for loss of companionship and
mental anguish caused by the death of his or her spouse. The
surviving spouse may also recover financial contributions that he or she
would have received in reasonable probability, as well as the financial value of intangible services that the deceased spouse would have rendered
in reasonable probability.
Recovery by Child:
A surviving child may recover damages for the loss of
companionship and mental anguish caused by the death of his or her parent.
A minor child of a decedent may also recover the sum that the
decedent would reasonably and probably have contributed to the maintenance
of the child and the value of the services that the decedent in
reasonable probability would have rendered in training, advising and
educating the child.
Adult children may also recover the sum that the decedent would
reasonably and probably have contributed to the child.
Other Damages: In certain cases,
claimants may also be entitled to damages for loss of inheritance as well
as punitive damages. [Next
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6.
What types of damages may be recovered in a survival action?
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Answer:
Generally speaking, damages recoverable in a survival action are
limited to those sustained by the decedent prior to his or her
death. They include damages for physical pain, suffering, property
damages, and medical expenses. Funeral expenses are also recoverable
in a survival action. In certain cases, punitive damages may also be
recoverable. [Next
FAQ] [Back to FAQ Menu]
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7.
What
is the first step in pursuing a wrongful death claim or a survival
action? |
Answer:
Given that wrongful death claims and survival actions generally involve a
variety of complex legal issues, the first step is to consult an
attorney. An attorney should be consulted as soon as reasonably
possible because there are statutes of limitations and possibly other
critical deadlines that may impact the case. [Next
FAQ] [Back to FAQ Menu]
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8.
What
if I am told by an attorney that I do not have a good case? |
Answer:
Determining whether or not one has
a "good case" is not an exact science. Because such
determinations involve the professional judgment (based upon many factors
and considerations) of experts and attorneys, it is recommended
that you seek a "second opinion" from one or more qualified
attorneys if told that your case is without merit. [Next
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9.
What
about the costs involved in pursuing a case? |
Answer:
Some attorneys (including the sponsor of this
website) will agree to handle wrongful death cases and survival actions on
a contingency fee arrangement. This means that the attorney will not
charge an hourly rate for his or her services, but instead will be paid a
percentage of the recovery in the event of a settlement or judgment.
In many instances, such attorneys will also pay the case development
expenses (such as expert fees, deposition costs, etc.) with the
understanding that he or she will recoup such costs only in the event of a
recovery. Therefore, you may be able to secure legal
representation without having to pay any attorney's fees or expenses out
of your own pockets. [Next
FAQ] [Back to FAQ Menu]
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10.
How
long will a wrongful death case take? |
Answer:
There is simply no easy answer to
this question. The vast majority of all cases, including wrongful
death cases, are settled prior to trial. Some cases are settled
prior to the filing of a lawsuit, while others are settled during
litigation or even on the "steps of the courthouse" just before
trial. A wrongful death case, if litigated to trial, could last a
number of years. One who pursues a wrongful death case should
understand from the outset that a quick resolution cannot be
guaranteed. [Next
FAQ] [Back to FAQ Menu]
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11.
When
must one make a claim? |
Answer:
In Texas, the "statute
of limitations" in most claims involving personal injury and death is
two years from the date the claim accrued. In wrongful death cases,
this is the date of death. Cases involving medical malpractice are
governed by a different limitations procedure that may be shorter than
two years from the date of death. Certain exceptions do exist under the
law in certain circumstances. For instance, the foregoing time
period may be extended for certain individuals, including those who are
minors or otherwise incompetent. Additionally, in certain
instances, such as when a medical profession conceals the incident of
malpractice, victims that did not know, and could not have known of the
malpractice until sometime after the incident are allotted additional time
under the law to file a lawsuit. The foregoing exceptions are fact
sensitive and require the analysis of a qualified attorney to determine if
they are applicable.
A potential claimant should always seek the advice of an attorney without
delay. In certain cases, there may also be other deadlines
within the first two years that may also impact the case.
For example, claims against government entities may require that the
entity or entities be put on "notice" much earlier than the the
statute of limitations period. Furthermore, given that expert and legal analysis must be done prior to
filing a lawsuit, you should not wait until the statute of limitations
period is nearing its end because the attorney may not have enough time to
complete his or her review prior to its expiration.
It is also advisable to consult an attorney as soon as possible for other
reasons as well. Memories of the event or events in question tend to fade
in witnesses, potential witnesses may later be unavailable because they
have moved, become incapacitated, etc. [Next
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