It can be especially difficult to know what to do after the loss of a loved one; the household is in chaos and bills are piling up, and perhaps you do not know where to locate important legal and financial information. A recovery through a wrongful death lawsuit can provide much-needed relief in the form of financial help and a sense of justice from holding the responsible party accountable for the harm they have caused. Below are answers to some frequently asked questions about the law of wrongful death in Texas. For other questions or immediate assistance, call Charles J. Argento & Associates in Houston at 713-225-5050. Your call is free and confidential, and you are under no obligation if you call.
Who can file a lawsuit for the wrongful death of another?
In Texas, a wrongful death lawsuit is for the exclusive benefit of the surviving spouse, children and parents of the deceased. Any one or more of these persons can bring a wrongful death lawsuit on their own behalf or for the benefit of all of them. If none of these parties commences an action within three months of the death, the executor or administrator of the estate should institute a wrongful death action, unless asked not to be the surviving spouse, children and parents.
What is a survival action, and how is it different from wrongful death?
When a person is injured by the negligence of another, that person has the right to bring a personal injury lawsuit against the negligent party. If the person dies before being able to file a lawsuit, the right to file passes on to the heirs, legal representatives, and estate of the deceased. In this sense, the right to file a personal injury lawsuit is said to “survive” the death of the injured party. A survival action is a personal injury lawsuit brought on behalf of someone who died while holding a potential personal injury claim.
A survival action and a wrongful death action can both be brought in many instances. Many of the facts which must be proven are the same in both cases. The biggest difference is in the type of damages which may be recovered. Damages in a survival case include harm such as medical expenses, lost income and pain and suffering. Damages for wrongful death include funeral and burial expenses, and mental and emotional anguish of the surviving family members. By bringing both a wrongful death case and a survival action, bereaved family members can maximize the compensation available to them while holding the responsible party more fully accountable for their actions.
What are exemplary damages, and when are they available for a wrongful death?
The damages discussed in the previous question are called “actual damages” because they refer to losses actually suffered by the aggrieved party. Exemplary damages, on the other hand, refer to a monetary penalty imposed on the negligent party in order to punish them for particularly bad behavior and to serve as an example to others about the types of behavior our society will not tolerate. Exemplary damages can be particularly high against a hospital, corporation or other wealthy entity responsible for an injury or death. Exemplary damages are available in Texas wrongful death cases when the death was caused by a willful act or omission, or by gross negligence. Exemplary damages are typically harder to prove, but at Charles J. Argento & Associates, we make every effort to achieve maximum compensation for our clients, including making the extra effort to obtain exemplary damages in appropriate cases.