Everything you need to know about pursuing a personal injury claim in under the Texas Survival Statute.
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?
What is a Survival Claim in Texas?
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 for Texas Survival Claims
It's important that you contact an experienced Texas wrongful death lawyer 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 in TX Survival Claims
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
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.