You have no doubt heard enough news stories about wrongful death lawsuits to realize that one of the goals is to assign liability to the person or party that caused a person’s death. It may seem as though such action is your only legal recourse if you have a family member who dies due to another’s negligence.
What happens, then, if your loved one does not die in an incident, but rather succumbs to its after-effects months or even years after it occurred?
Survival actions vs. wrongful death
You may believe that your opportunity to sue the party responsible for the death of your family member dies with him or her. If your family member did not take legal action before dying, is it too late now? A wrongful death lawsuit may seem out of the question if your loved one did not immediately die as a result.
Fortunately, legal recourse may still be available to you due to the possibility of a survival action. Per Section 71.021 of Texas’ Civil Practice and Remedies Code, a cause of action survives both the person entitled to it and the person it was against. The cause of action can be for any type of personal injury, including damage to:
- A person
- His or her health
- His or her reputation
If you are an heir or the legal representative of the one who had the cause of action, you can pursue it in his or her stead. You can also take action against a negligent party who has died.
Damages available through a survival action
In a wrongful death lawsuit, the law will typically only award you damages to compensate for a person’s loss. A survival action differs in that the law treats the case as though the claimant were still alive. This means a judge or jury may also award damages for your loved one’s pain and suffering.