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What is a Survival Claim?

A Survival Claim is a legal tool that allows the estate of a deceased person to pursue a personal injury claim in the same manner that the deceased person would have been able to had they not died. This type of claim has a common law basis in certain types of property lawsuits, which were allowed to continue after the plaintiff had died. However, the common law specifically forbade personal injury cases from continuing after the death of the plaintiff.

Recognizing this disparity, as well as seeing some of the real world problems created by the common law rule that prevented personal injury cases from beginning or continuing after a plaintiff’s death, the Texas Legislature abolished the rule when they passed the Texas Survival Statute. This statute granted the heir or executor of an estate to bring or continue a personal injury lawsuit on behalf of the deceased person.

The easiest way to think of a Survival Claim is not a cause of action in its own right (because it’s not), but as a procedure for an estate to bring or continue a personal injury lawsuit.

While seemingly similar to a Wrongful Death Action, which is its own cause of action and designed available to descendants of the deceased, a Survival Claim is for the benefit of the deceased’s estate and not a cause of action in it’s own right. It merely allows another personal injury cause of action to survive the plaintiff’s death.

In this article, Dallas personal injury attorney Michael Grossman discusses Survival Claims and how they work.

If you are interested in reading about the difference between Survival Claims and Wrongful Death Actions in more detail, please check out our article, What Is the Difference Between a Wrongful Death Action and a Survival Claim?

The Texas Survival Statute is a law that allows surviving family members to recover compensation on behalf of their loved one’s estate for the the pain, suffering, and mental anguish he or she endured before death. This survival statute is a solution to the general principal of Texas law that, in its original form, used to terminate a person’s ability to bring a claim after their death. Today, survival claims are still often under-looked when dealing with a loved one’s death caused by the wrongful actions of another. In these cases, if your loved one died because of someone else’s negligence, and in addition, could have filed a lawsuit to recover for the injuries incurred before death, an attorney can utilize the Texas Survival Action on behalf of their estate.

Texas law requires the plaintiff in a survival case to prove each of the following elements:

  • You are a legal representative of your loved one’s estate;
  • Your loved one had a cause of action for the personal injuries they suffered before they died;
  • Your loved one would have been able to bring a personal injury claim had they survived the defendant’s wrongful conduct;
  • The defendant’s negligent actions caused the injuries that resulted in your loved one’s death.

Purpose of the Texas Survival Statute

The Texas Legislature developed the Texas Survival Statute to provide you, a surviving family member, the right to file a claim on behalf of your loved one’s estate for the pain and anguish they suffered before their death. Survival claims give the representative of the estate the opportunity to recover the compensation that your loved one would have recovered if they had not died, but had just suffered personal injury instead. This Survival Statute also allows you the opportunity to hold the person or corporation responsible for their wrongful behavior.

Statute of Limitations

It’s important that you contact an experienced personal injury and wrongful death attorney quickly so that your survival claim isn’t barred by the statute of limitations. Notably, the time period for which you’ll be required to file suit is the same as your loved one would have had to bring a lawsuit on their own behalf, which is two years from the time that the injury occurred. As correctly calculating the applicable limitations period in a survival claim is essential to the success of the case, it’s important that you contact an experienced wrongful death and personal injury attorney.

Recoverable Compensation

Compensation recoverable under the Texas Survival statute is that which your loved one could have recovered from the negligent party had he or she not died. A sample of the types of compensation available through the survival statute include the medical expenses your loved one incurred before they died, the value of their pain and suffering, the wages they lost while receiving medical care, and their funeral expenses.

Examples of How Survival Claims Work

  1. A man was severely injured in a car accident on I-635 and required extensive medical attention due to his injuries. Although the man intended to file a personal injury claim while he was in the hospital, he dies before he is able to. In this scenario, his personal injury claims did not lapse simply because he died; rather, his personal injury claims were passed to his estate and and can be pursued by his family members.
  2. A woman was seriously injured in a car accident by a drunk driver on I-30, slips into a coma, and tragically, never wakes up. In this scenario, her family can bring a survival claims for the injuries she suffered before her death on her behalf because, under the Texas Survival Statute, they inherited her personal injury claims.
  3. A man was in a car accident and suffered several broken bones and soft-tissue injuries as a result. While receiving treatment for his injuries at a hospital, he’s surprised to learn that he has an advanced, fatal form cancer. Sadly, the accident victim dies shortly thereafter from causes entirely attributable to cancer, not to his personal injuries. In this scenario, his family will still inherit his personal injury claim through the Texas Survival Statute.

As you can see, the first two examples show that the victims have both survival and wrongful death claims. In the third example, the victim does not have a wrongful death claim, because he perished from something other than his injuries. However, he still suffered because of someone else’s negligence, and should still receive compensation for his estate. If you’d like more examples of the differences between survival and wrongful death claims, you can read this article.

The attorneys at Grossman Law Offices have proudly represented personal injury and wrongful death victims since 1990, and may be able to assert the recovery available under the Texas Survival Statute on the behalf of your loved one’s estate. For more information and a free consultation of your case, our attorneys invite you to give us a call today at (855)326-0000.

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