When you experience the loss of a loved one, you may be responsible for settling their estate and taking care of unfinished business. Sometimes, this business includes bringing or continuing a personal injury lawsuit.
Under the Texas Survival Statute, an heir or an executor can pursue a survival claim for an injury suffered by a deceased victim.
A survival claim is not a cause of action. It allows you to pursue the personal injury claim your loved one could have brought during their lifetime. Just because your loved one dies doesn’t mean you can’t pursue justice on their behalf.
What’s the Difference Between a Wrongful Death Claim and a Survival Claim?
Sometimes people get wrongful death claims and survival claims confused. However, they are two different legal actions, outlined in the Texas Survival Statute and the Texas Wrongful Death Act.
The difference between these claims can be summed up like this:
- A survival claim allows heirs or the estate executor to bring a personal injury lawsuit over an injury the deceased suffered while alive; and
- A wrongful death claim compensates family members for the harm they suffered from their loved one’s death.
A survival claim award goes to the deceased’s estate and is distributed according to their will or state intestate succession rules. A wrongful death award compensates the surviving spouse, children, or parents directly, without being dispersed through the estate.
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What Are the Elements of a Survival Claim?
A survival claim applies only to situations where the deceased sustained harm caused by someone else before death.
There are four elements to a survival claim:
- The plaintiff represents the victim’s estate;
- The deceased had a personal injury cause of action;
- The deceased would have been able to sue for personal injury if they had lived; and
- The defendant’s wrongful act caused the victim’s injury.
Note that this personal injury claim does not have to be related to the cause of death. The family can bring a survival claim for a separate incident.
An example of this is when John ingests bacteria-laden food at a restaurant and becomes very ill. Due to his illness, he loses his job and incurs extensive medical bills. A few months later, before John files a personal injury lawsuit for the food contamination, John is killed by a negligent driver.
His death had nothing to do with the food poisoning, but his family still can bring that personal injury claim against the restaurant on John’s behalf.
On the other hand, a survival claim might be related to the victim’s cause of death, reflecting the victim’s suffering before death. In this case, maybe John suffered at the scene of the car accident and in the hospital before he died. His family can then bring a survival claim against the negligent driver for John’s medical bills and suffering experienced before death.
When Should You File a Survival Claim?
Under the statute of limitations, family members have only two years from the time the injury occurred to file a survival claim. This means the two-year clock does not start at the time of the loved one’s death.
It starts at the time of the injury (or sometimes, when the person discovered the injury), which might have been long before the person died.
Pay close attention to the statute of limitations so you don’t lose out on the opportunity to pursue a survival claim. It doesn’t hurt to contact an attorney for information on the statute of limitations, even if you’re not ready to file a claim.