Death Cases

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In Texas, there are two components to a case involving the death of a plaintiff, the survival action and the wrongful death action. The survival action represents the pain and suffering and mental anguish that the victim suffered before the death. The wrongful death action is an action by the victim's heirs for their own mental anguish and/or loss of support as a result of the death of their loved one.

Texas law sets forth specific guidelines on who can legally recover for the wrongful death of a loved one. Generally, if a married person who has children dies, the spouse and the children have a claim for wrongful death. The spouse has the survival action. The children cannot also have the survival action since it represents the victim's suffering not their own suffering.

If a person dies without a spouse, then the children have the survival and wrongful death actions. If a person dies without a spouse or children, then the surviving father and mother of the deceased may bring the actions. If the deceased left no spouse, children and no surviving parents, then his surviving brothers and sisters inherit the actions.

Thus, the parents of a deceased victim do not have the right to bring a claim for the wrongful death of their child if the deceased is survived by a spouse or children.

Texas does allow for the recovery of punitive damages in medical malpractice cases under certain circumstances. These damages would be in addition to the damages to compensate the victim for their actual losses and mental anguish.