Topic: Filing a Wrongful Death Claim
Our Dallas Wrongful Death Lawyers have 35 years experience in winning wrongful death cases.
If you’ve lost a loved one because of someone else’s negligence, our wrongful death attorneys are here to help you through the difficult process of holding the wrongdoer accountable.
We will work hard to level the playing field, which will improve your chance of obtaining justice. Our attorneys and in-house private investigator will get to work fast. Below is some of the information you need to know.
No win no fee wrongful death lawyers in Dallas, Plano, Frisco, and Fort Worth.
The decisions you and your family make will prove vital to the outcome of your wrongful death case. You only have one chance to tell your loved one’s story the right way. A number of strategic decisions must be made immediately. Evidence must be gathered immediately. Experts may be required immediately. Our law firm, with locations in Dallas, Plano, Frisco, and Fort Worth, has vast experience handling wrongful death and survival action cases across North Texas. Allow us to intelligently, carefully and strategically fight for you and your deceased family member.
Remember: The wrongdoer and/or their insurance company are already assessing and strategizing how to deal with your claim. They may be aiming to delay, deny or minimize it. If you wait to find out, it could be too late. If you wait to hire a wrongful death lawyer, the wrongdoer may have the upper hand regarding a number of issues such as locating and questioning witnesses first, tampering with or destroying evidence or simply providing you with little to no information, leaving you in the dark and thus not truly knowing your rights.
What’s the difference between a wrongful death case and a survival action?
A wrongful death case is brought by certain family members that directly suffer financial and/or emotional harm because of the untimely loss of a relative, caused by someone else’s negligence or gross negligence.
A survival action is brought by the deceased’s estate. The estate sues for the deceased’s own harm and damages caused directly from someone else’s negligence or gross negligence that resulted in their death.
The answer depends on who was harmed. Was it a father who died instantly and now can’t support his children, or are we dealing with a single man who suffered a long, slow and painful death? In the former situation, the children certainly should sue for the financial support they’ve now lost because of their father’s untimely demise. In the latter situation, there are no children, but the estate can sue for the pain, suffering, physical impairment, mental anguish, and any medical bills sustained by the victim in the days or weeks leading up to his death. Of course, there are situations where wisdom dictates it’s best to file both causes of action.
You may find these wrongful death FAQs helpful:
Q: Who is able to file a wrongful death suit?
In the state of Texas, there is a legal distinction between the persons able to file a wrongful death suit and the person who are beneficiaries. Our Dallas wrongful death attorneys can provide specific information in your case. According to the law in Texas, those who can file a wrongful death claim are laid out by statute:
- Surviving spouse
- Child or multiple children (including adult children)
- Parent or legal guardian
Q: Are siblings allowed to file a wrongful death suit?
A: No, siblings do not have this right.
Remember: Monies recovered from a survivor action goes to the estate, and if the deceased had a will and that will names a sibling as a beneficiary then the sibling will indirectly benefit from the lawsuit.
Q: Can the decedent’s estate file a wrongful death suit?
A: The law in Texas generally is that the executor and/or administrator of the decedent’s estate may file a wrongful death lawsuit if one has not been filed in the ninety (90) days following the decedent’s death by his or her surviving spouse, children, or parent and/or guardian.
Remember: An exception to the general rule exists if the estate has been forbidden to file a lawsuit by one of the parties referenced above.
Q: What are the elements that must be established to file a wrongful death action?
A: In Texas a wrongful death suit must be filed by the decedent’s surviving spouse, parent, or child as discussed above. In addition, a person or corporation must have committed a wrongful act that caused injuries to the decedent resulting in his or her death.
Remember: It must also be established that the decedent would have been entitled to bring a personal injury action if he or she had survived. Also, the surviving spouse, parent, or child must also have suffered actual damages.
Q: What damages are recoverable in a wrongful death cause of action brought by a surviving spouse, parent, or child?
A: You can recover “actual damages.”
Remember: A surviving spouse of a decedent or surviving children of a decedent can potentially recover punitive damages but this is not true of parents of a child.
Q: What “actual damages” are recoverable by parents of a child who was a victim of a wrongful death?
A: Recoverable damages include monetary damages resulting from the death of the child (before and after the age of 18), damages for the termination of the parent-child relationship which is commonly referred to as “companionship and society”, and mental anguish (emotional pain, torment, and suffering – sometimes submitted as grief and bereavement) resulting from the death.
Q: What “actual damages” are recoverable by parents if the child was an adult at the time of his or her wrongful death?
A: The same damages as if the child was a minor.
Q: What “actual damages” are recoverable by a wife or husband whose spouse was the victim of a wrongful death?
A: Recoverable damages include monetary loss due to the death of the spouse, damages for the termination of the spousal relationship (love, affection, comfort, sexual relationship), mental anguish caused by the wrongful death, and loss of inheritance (loss of future earning capacity / money that would have been added to the estate).
Q: What “actual damages” are recoverable by a surviving child whose mother or father was the victim of a wrongful death?
A: Recoverable damages include monetary loss resulting from the death of the parent, damages for the cessation of the relationship (love, compassion, etc.), mental anguish, and loss of inheritance (if any).
Q: What will a jury be allowed to consider when arriving at damages for mental anguish and/or loss of companionship?
A: Jurors are typically instructed that they can consider the relationship between the party and the deceased, living arrangements of the parties, any periods of extended absence, family harmony, and shared interests/activities.
Q: Can you recover punitive damages if your child, spouse, or parent was the victim of a wrongful death?
A: Yes, if the loved one’s death was the result of willful or grossly negligent conduct.
Remember: The caps on punitive damages laid out in the Tort Reform Act of 1995 are applicable.
Also Remember: Texas judges have limited the recovery of punitive damages in wrongful death cases to the surviving spouse and children. (Inexplicably) Parents are not able to recover punitive damages for the death of a child.
Q: Can you recover damages for the wrongful death of a spouse if you were separated at the time of the wrongful death?
A: Potentially. This is a very case specific inquiry and support (if any) you received from the decedent during the separation period prior to his or her death.
Q: If you are pregnant can you recover for the wrongful death of a fetus?
A: Yes, but (again inexplicably) generally only if the fetus is born alive and subsequently dies.
Q: What is a “Survival Action?”
A: A survival action is filed by or on behalf of an estate to recover damages the decedent who was the victim of a wrongful death sustained prior to his or her death.
Q: What damages are recoverable in a “Survival Action?”
A: Recoverable damages include physical pain and mental anguish suffered by the victim prior to his or her death, medical expenses incurred prior to the passing, funeral and burial expenses, property damages, and punitive damages.
Q: Does the type of claim and/or action brought have any impact on hospital liens?
A: Yes, amounts recovered in a survival action are subject to a hospital lien while wrongful death damages generally are not.
Q: In a survival action can the estate recover damages for physical pain and mental anguish if the victim was killed or lost consciousness quickly?
A: Probably not. Recovery of these damages is generally limited to instances in which conscious pain and suffering can be demonstrated – even if only for a short period of time.
Filing a Texas Wrongful Death Lawsuit
If you desire to file a wrongful death suit in Texas, consult with our qualified Dallas wrongful death lawyers for advice specific to your case. Under Texas law, you will need to prove that your case fits at least one of the below scenarios:
- A person is liable for damages arising from an injury that causes an individual’s death if the injury was caused by the person’s, his agent’s or his servant’s wrongful act, neglect, carelessness, un-skillfulness, or default.
- The defendant is a proprietor, owner, charterer or hirer of an industrial or public utility plant or of a railway, street railway, steamboat, stagecoach or other vehicle for transportation of good or passengers and the death was caused by the person or his agent’s wrongful act, neglect, carelessness, un-skillfulness, or default.
- The defendant is a receiver, trustee or other person in charge or control of a railroad, street railway, steamboat, stagecoach, or other vehicle for the transportation of goods or passengers, of an industrial or public utility plant or other machinery. In addition, the death must have been caused by:
- the person’s wrongful act, neglect, carelessness, un-skillfulness, or default; or
- the person’s, servant’s or agent’s wrongful act, neglect, carelessness, un-skillfulness, or default; or
- a bad or unsafe condition of the railroad, street railway, or other machinery under the person’s control or operation.
- A person is liable for damages arising from an injury that causes an individual’s death if the person is a receiver, trustee, or other person in charge of or in control of a railroad, street railway, steamboat, stagecoach, or other vehicle for the transportation of goods or passengers, of an industrial or public utility plant, or of other machinery; and the action could have been brought against the owner of the railroad, street railway, or other machinery if he had been acting as operator.
This information is intended to help you prepare for filing a wrongful death suit. However, the information is not intended to replace sound and detailed case-specific legal advice from a qualified attorney. Allow the wrongful death lawyers at Mullen & Mullen Law Firm to partner with you in your quest for justice. Contact us today for a free legal consultation. We serve Dallas, Plano, Frisco, Fort Worth and the entire North Texas area.
When a wrongful death claim is anticipated, it is crucial to preserve evidence and quickly begin an investigation into the cause of the accident. In addition, it is imperative to file a law suit prior to the statue of limitations deadline. If a loved one has been a victim of wrongful death, call us at (214) 747-5240 or submit a simple case form online.
The initial consultation is free, and if our wrongful death attorneys accept your case, we will work on a contingency basis and only get paid if we recover compensation for you. If you mention our website, we’ll reduce your contingency fee from the standard 33.3% down to 28% if your case settles without filing a lawsuit. Only you can authorize the filing of a lawsuit.
If your loved one has been the victim of wrongful death, you may be entitled to substantial compensation, but you must either settle or file suit before the statue of limitations expires. Don’t delay; call our wrongful death lawyers in Dallas, Plano, Frisco, and Fort Worth today.
How to Prove a Wrongful Death Claim
It’s sad but true – innocent people are killed because of the careless or reckless actions of others. No one knows the precise numbers, but somewhere between 44,000 to 440,000 Americans die each year due at least partially due to preventable medical errors.
Wrongful death also happens because of:
- Car accidents
- Truck accidents
- Motorcycle accidents
- Bike/pedestrian accidents
- Defective products
- Work Injuries
- Construction accidents
- Medical Malpractice
What is Wrongful Death?
If you put it simply, wrongful death happens when your family member dies because of the negligence, recklessness, or intentional acts or misconduct of another. Some suits are filed after either a failed or successful criminal case. However, it is easier to prove wrongful death than the alleged crime associated with it.
How Do You Prove Wrongful Death?
You have to prove 4 different elements:
- The defendant’s actions must have caused your loved one’s death (either in whole or part)
- The defendant must have acted with negligence or the specific intent to cause harm
- Your loved one’s death must have affected you or other surviving family members who can get compensation
- Surviving family members must be present and suffer monetary injury because of the death
Was the Defendant Negligent?
The most difficult aspect of any wrongful death claim is proving negligence. If someone was driving drunk and well over the legal BAC limit, negligence is easy to prove. But in cases where medical malpractice may cause wrongful death, it’s not always so clear and often costs lots of time and money to show.
You might also hear this called “proving duty” which refers to the fact the defendant is liable to the decedent for a duty of “due care.” Basically, that’s a duty to keep the other person safe or not to do something that may harm another person.
Did the Defendant’s Actions Cause Your Loved One’s Death?
Showing causation can also be easy or amazingly difficult. If a car crash happens, it’s comparatively easy to show the defendant’s car did or did not cause the accident.
But again in cases where medical malpractice is involved, it gets very difficult to show negligence. For example, your loved one could die months or years after a negligent act (like prescribing the wrong medicine) happens.
In wrongful death, if you show breach of duty and causation, damages are presumed because you showed the injured person was killed. However in cases where harm happens but wrongful death doesn’t, you can prove both of those but still lose the suit because you didn’t prove the nature and extent of the harm.
It’s sad other people make decisions which can cause the death of your loved one, but it’s a reality you have to live with. If you find yourself in this heartbreaking situation, contact Mullen & Mullen Law Firm for a free consultation.