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Losing a loved one is one of life’s most painful experiences. The grief may feel even more intense if someone else’s wrongful actions caused his or her death. While no amount of compensation could remedy these losses, families of wrongful death victims may be eligible to file a lawsuit on his or her behalf.
What is a Wrongful Death Claim?
According to Texas Statutes section 71.001, a wrongful death is one that occurs due to the wrongful act, neglect, unskillfulness, carelessness, or default of another party. Individuals, government agencies, manufacturers, and corporate entities are often the liable parties in wrongful death claims.
If you are unsure whether your loved one’s case qualifies for a wrongful death claim, ask yourself if he or she could have filed a personal injury claim if he or she had survived. If the answer is yes, your family likely has grounds for a claim.
Who Has Standing To Bring a Wrongful Death Claim
In Texas, only certain parties may file a claim on behalf of a deceased person. The surviving spouse, children, and parents of the deceased all have the right to file a wrongful death lawsuit. If these parties do not file the claim within three months of the deceased’s passing, the personal representative of the deceased’s estate may bring the claim, unless the family prohibits it. Siblings are not allowed to file a wrongful death lawsuit under Texas law. Discuss the loss of a loved one with a Fort Worth wrongful death lawyer to determine if you are able to file a claim.
What Damages Can you recover in a Wrongful Death Case
The purpose of a wrongful death claim is to compensate the deceased’s family and estate for the losses related to his or her passing. The family can recover compensation for the economic damages, or financial losses, as well as the pain and suffering they sustained due to the death.
Common damages in wrongful death claims include the following.
- Lost earning capacity
- Lost inheritance
- Loss of love, comfort, society, and companionship
- Mental anguish and emotional distress
- Loss of care, services, support, advice, counsel, or maintenance
Survival Action vs. Wrongful Death Claim
While you and your family may be eligible to file a wrongful death claim, another legal pathway may be available to you. Survival action claims are similar to wrongful death claims in that a third party files a lawsuit on behalf of a deceased person. Like wrongful death lawsuits, this third party can file the claim if the deceased could have pursued a personal injury lawsuit if he or she had survived the accident.
Unlike wrongful death lawsuits, however, the claim is usually filed by the personal representative of the deceased’s estate. The deceased will typically appoint a personal representative in his or her will. If the deceased does not leave a will behind, the court will typically appoint the representative on his or her behalf.
Additionally, instead of focusing on the pain and suffering that the family of the deceased experienced, survival actions focus on the losses that the deceased person experienced as a result of his or her death. Damages available in Texas survival action claims include the following.
- Medical expenses that the deceased sustained after the accident and prior to his or her death
- The lost wages and benefits that the deceased accrued between the time of his or her accident and the time of his or her death
- The pain and suffering that the deceased experienced before his or her passing
Instead of disbursing the damages in a survival action to the deceased person’s family members, the court will send the damages directly to his or her estate. Once these damages are placed in the estate, the personal representative will distribute the settlement proceeds according to the deceased’s will.
Elements of a Proper Wrongful Death Claim
Proving a wrongful death claim is similar to proving a personal injury lawsuit. You and your family will need to prove that an at-fault party’s negligence caused your loved one’s death and the pain and suffering you experienced due to his or her actions. Specially, you and your family will need to provide sufficient evidence that establishes the following three elements.
- Duty: First, you must prove that the at-fault party owed your loved one a duty of care. This duty will depend on the circumstances surrounding your loved one’s accident. For example, if your loved one passed away due to a doctor failing to diagnose symptoms of a heart attack, the doctor in question owed a duty to uphold a certain standard of treatment while your loved one was under his or her care.
- Breach of duty: Next, you must prove that the at-fault party breached his or her duty of care through a negligent act or failure to act. For example, say that your loved one went to the doctor with hallmark symptoms of a heart attack and the doctor refused to run the necessary tests to diagnose the condition, instead diagnosing him or her with anxiety. In this situation, another doctor would have ordered the necessary tests, and you can establish that the at-fault physician failed to uphold the medical industry standard of care.
- Causation: After you establish breach of duty, you will need to show that this breach caused your loved one’s death. For example, say that the doctor who refused to diagnose your loved one’s condition sends him or her home and he or she later dies from the heart attack. If your loved one had received an accurate diagnosis when he or she initially visited the doctor, the doctor could have caught the heart attack in time to treat it, potentially preventing his or her death.
You will need to gather multiple pieces of evidence to establish these elements and prove the at-fault party’s negligence. For example, say that your loved one passed away in a car accident. The at-fault driver was under the influence of alcohol and drove through a red light, leading to a collision. Establishing duty of care is relatively straightforward in this case; all drivers have a duty to drive safely and follow all traffic laws.
To establish the breach of duty, you will need evidence that establishes that he or she ran the red light and was under the influence of alcohol. Police reports from the responding officer can establish this element, as well as surveillance footage and witness testimony. To prove causation, you can use these same pieces of evidence, as well as your loved one’s medical records.
What is the Burden of Proof?
Proving a wrongful death claim requires you and your attorney to provide enough evidence that establishes each of the elements discussed above. However, you will also need to meet the burden of proof. In Texas, the burden of proof for wrongful death claims is the preponderance of the evidence.
Preponderance of the evidence is a legal standard that states that the at-fault party is more likely than not to have caused the deceased person’s death. The jury responsible for hearing the case will need to determine whether or not the evidence meets this standard. Preponderance of the evidence is a much lower burden of proof than criminal cases, which requires juries to determine beyond a reasonable doubt that the at-fault party caused the deceased person’s death.
What Can Your Attorney do for You?
Proving a wrongful death claim can be a challenge without an attorney on your side. Not only will you and your family need to gather evidence, speak to witnesses, and understand complex litigation processes, but you will need to take these steps while grieving from a difficult loss. In these situations, a lawyer can guide you through the process and fight tenaciously for your right to recovery.
A Fort Worth wrongful death lawyer from the Nwoha Law Firm can provide several benefits to your case, including the following.
- In many wrongful death claims, you will need to negotiate with insurance company representatives to attempt to reach a settlement. While insurance companies may claim to want to settle your case as soon as possible, it is important to remember that the representative likely wants to protect the interests of his or her employer. As a result, you need an advocate on your side during the investigation. Your attorney can negotiate with the insurance company on your behalf and guide you through the claims process, helping you reach the best possible outcome.
- Your lawyer will understand the legal processes that you and your family will need to complete to secure justice on your loved one’s behalf. Your lawyer will have significant experience handling cases similar to yours and will be able to handle all aspects of your case on your behalf. As a result, you can avoid unnecessary delays or errors that could impact your ability to recover compensation in your claim.
- It can be difficult to calculate the full extent of your and your family’s wrongful death damages. Your attorney will have the tools and knowledge necessary to explore every possible avenue to compensation and calculate the maximum settlement value that you and your family deserve. Your lawyer will also help you gather the evidence you need to prove your right to this compensation.
- Navigating the wrongful death claims process can be a highly emotional and complex process. It can be very difficult to handle this litigation while recovering from the aftermath of your loved one’s death. Your attorney will be a source of support and strength for your family, providing a caring and empathetic approach to guide you through the process. By having your lawyer handle your case, you can focus on healing, not paperwork.
- While many wrongful death claims settle before making it to trial, there are certain situations where you may want to take your case to the courtroom. In these situations, you need an attorney on your side who can craft a compelling case in your favor. Your lawyer can represent you in your court case and advocate tenaciously for your family’s right to compensation.
If you believe that your loved one’s passing qualifies for a lawsuit, it is important to contact our personal injury attorney as soon as possible. A lawyer can evaluate your case and determine whether you have grounds for a claim. After your initial consultation, your attorney will take the first steps toward filing your lawsuit and identify your family’s optimal path to recovery.
Time Limit to File a Wrongful Death Claim
Like most civil lawsuits, wrongful death claims are subject to a rule known as the statute of limitations. This law places a time limit on how long a family member may file a wrongful death claim; if the family fails to file by the time this deadline passes, the court will likely dismiss the claim. As a result, the family cannot collect compensation for their loved one.
In Texas, you have two years from the date of your loved one’s passing to file your claim. While there are exceptions to this rule, they are not common in wrongful death claims.