Survival Claim Compensation
When a loved one dies after an injury, either because of the injury or from another cause, their personal injury claim does not disappear. As this type of claim suggests, it "survives" the person after their death in order to benefit their estate. Because a person's estate is still responsible for paying things like medical bills, funeral expenses, etc., the Texas Survival Statute was established in 1985 so that offenders could still be held liable for injuries that they cause, and so that family members or estate representatives could file on behalf of the victim's estate.This article outlines compensation that can be received from a survival claim, but if you'd like to read more about survival claims in general, visit our Overview of the Texas Survival Statute
Who can file a survival claim?
Because a survival claim's purpose is to compensate the victim's estate, whoever the representative of the estate is will file the claim and receive the compensation on behalf of the decedent(the victim or deceased person). This may be a family member such as a parent or child of the decedent, or it may be someone else if specified in the will. If there are no close family members and there is not a will, then someone will usually be appointed by the court as the representative of the estate, who will take care of all finances and dissolve the estate.
What can be recovered
Recoverable compensation for a survival claim is based on the decedent's personal injury claim. Therefore, when considering compensation, it is comparable to the injury. If the decedent was injured because of gross negligence, his or her estate would be awarded a higher amount of punitive damages. If the decedent suffered mental anguish and/or was aware of his or her impending death, mental anguish damages would be recovered. The circumstances of the injury and the suffering of the decedent is how the jury determines compensation.
List of Recoveries
- Underlying Personal Injury Damages
- Pain and Mental Anguish
- Medical Expenses
- Funeral Expenses
- Punitive Damages(also known as exemplary damages, these are paid in order to punish the defendant for particularly malicious or wanton acts, i.e. gross negligence)
When filing a survival claim, it is important to have an attorney in order to make sure that all of the elements of a survival claim are in place. As the plaintiff of the case, the representative and/or heir of the estate has the duty to prove that the decedent had a personal injury claim that he or she would have been able to file, and that the defendant was responsible for the wrongful act that brought about these injuries. If you're unsure if these elements are in place, you may want to find a law office that will investigate the situation at no charge to you. These law firms, like ours at Grossman Law, only get a percentage of your winnings, so you'll never have to pay us a cent unless you win your case. If we do investigate for you and find that you have a claim, you will still have the option of whether or not you'd like to pursue it. Call for your free consultation at (855)326-0000.