Suffering traumatic injuries is difficult enough for families, but when loved ones die from their injuries, it can be devastating. A person may sustain an injury type that, over the course of a few weeks, months or years, leads to death. When this is the case, the injured person or his or her family members may begin a personal injury claim — or have the right to begin a personal injury claim — against the liable party. However, if the claimant dies before the case is settled, surviving family members may have questions about what’s next. The following provides an overview of what to do if your loved one filed an injury claim but passed away before it was settled.
Survival Cause of Action
When a person dies before their case is settled, his or her family members may continue the suit in what’s known as a survival cause of action, or just a survival action.
The elements of a survival action are the following four listed below.
- The plaintiff is the legal representative of the deceased (most usually a family member)
- The deceased had a cause of action for personal injury prior to death
- The deceased had started or was entitled to begin a cause of action against the at-fault party
- The defendant’s wrongful act was the cause of injury and death of the deceased
Under Texas Civil Practice and Remedies Code Title 4: Liability in Tort, Subchapter B, the law reads that a personal injury lawsuit, “survives to and in favor of the heirs…of the injured person.”
What damages am I entitled to in a survival action?
If you are the representative of a deceased loved one in a survival action, you will be entitled to the same damages that your loved one would have been awarded had he or she survived. This usually means loss of earning capacity, pain and suffering of the deceased, and medical expenses and lost wages. A survival action does not provide damages for your own or any other family member’s pain and suffering. However, a wrongful death action that does pay damages for noneconomic damages, like loss of guidance or companionship, may be filed separately.
How do I file a survival action?
The first step in filing a survival action is hiring an attorney for representation. Your attorney will walk you through everything you need to know about the claim, proving negligence and requesting damages. At the Law Office of Julie Johnson, PLLC, we are ready to get to work. Call us at 214-290-8001 to learn more about survival actions today or contact us online.