The simplest explanation is that the person injured that would normally have a personal injury case had they lived, did not survive, and the injuries caused his/her death. Certain heirs can then sue based on that event. The wrongful death claim still relies on proof of liability by the actor causing injuries to the deceased, although the injury may be the death itself as opposed to a lingering identifiable personal injury from which death results.

In Texas, if there is an injury that does not result in immediate death, then there may be a Survivorship claim on behalf of the deceased’s estate. Think of it this way: between the time of injury and death, the injured person has a claim for the conscious pain and suffering they experienced before they died. This claim does not belong to the deceased’s heirs, but belongs to the deceased so that it now must be brought by the executor of the estate. If no estate is probated, then no survivorship claim can be made, in which case, the heirs are left with the claim that belongs to them – wrongful death.

So, in effect, the firm will always look to see if there was a time of consciousness post injury for which an estate claim exists in addition to a wrongful death claim. Sometimes a decision is made not to bring that claim, even though it could be brought. That is a discussion to be had between the attorney and the clients.

Back to the Wrongful Death claim. The potential claimants are the deceased’s spouse, children (including those adopted), and parents. Siblings, grandchildren, and stepchildren cannot maintain this action. Many family dynamics are involved, and these cases can be very detail intensive, so it is important to get an attorney involved to evaluate the possibilities immediately.

This is one of the biggest decisions to make, and it often is not a pleasant one. Many family survivors do not want an autopsy performed, period, full stop. That is a legitimate decision and the firm will not fault the family for the decision. With that said, if there is any doubt on the need to prove a cause of death – think of death after surgery as opposed to a car accident – an autopsy may be the only way to secure the evidence needed. The firm will work with whatever we have to work with, but in some instance when given the opportunity, the firm has made arrangements and had an autopsy performed, fronting the expenses – only to determine there was no evidence to support the filing of a lawsuit. But those are the risks this law firm takes to represent our clients and ensure a lawsuit is legitimate and the truth is told.

Think of the damages as based on a relationship between the surviving family member and the now-deceased. The possibilities are basically:

• past / future pecuniary loss, i.e. wages deceased would have contributed
• past / future mental anguish
• past / future loss of companionship and society, i.e. love, comfort
• loss of inheritance

Each plaintiff is considered separately. For instance, a young spouse may have a significant pecuniary loss from his/her spouse who was killed at the age of 30 and had many years of a working life expectancy. On the other hand, a parent who loses a minor child will probably have no measurable pecuniary loss because the minor had no work experience and wage history that could be measured. A child who was close to their now-deceased parent may have a great loss of companionship and mental anguish, while a child who did not like his parent and seldom spoke with them would not. David had a case where he represented five children for the wrongful death of a nursing home resident father, but refused to represent one child who so disliked his father that he had legally changed his last name. The point being that a lot of options are to be considered by the attorney in evaluating the claims of each potential plaintiff.

The same as in a personal injury lawsuit. If the now-deceased family member who was wrongfully killed was contributorily responsible for his/her injuries, then the jury decides the percentage of responsibility. If the deceased was more than 50% at fault, the wrongful death claim will fail.

Punitive damages are not allowed in many lawsuits. With very few exceptions, they are recoverable in "tort" cases, those cases that arise from a civil wrong or personal injury. Matters that arise in contractual relationships will generally not permit them.

Depending on the underlying cause of the loss – such as if the death was caused by malpractice versus a car accident – then both the proof needed and the amounts recoverable will be affected by statutory guidelines.

In general, punitive a/k/a exemplary damages are awarded by the jury to punish. So, they are not like the foregoing damages that are to compensate the victims of wrongful death. Subject to specific statutory regulations providing otherwise, think of punitive damages being based on a finding of knowing, intentional, and/or an act with malice, or gross negligence. It is a heightened level of wrongdoing that must be shown. Where there are caps on the amount of punitive damages that can be awarded, those caps can be increased under circumstances such as murder and intoxicated manslaughter.

So there will be times when a judge will not permit a punitive damages claim to be submitted to jury since the evidence simply will not meet that heightened level of conduct. The simplest example is a person causing an accident and a resulting death by following to closely versus one who caused the accident when he passed out from being intoxicated. Every case is specific to the evidence.

No. Wrongful death is derivative of a personal injury claim, so a person who is certified in personal injury law should be equipped to handle a wrongful death claim. However, experience in these suits and in personal injury trial law is important as a wrongful death claim has many additional considerations involved in both the evaluation and trial of the issues, so board certification in personal injury is important.

The same as with a personal injury lawsuit. There may be more than one agreement with the firm if there are multiple plaintiffs, but the percentage recovery – including the reimbursement for expenses and costs of suit – will be applied per plaintiff so as to equal one percentage recovery. This will all be explained at the time the fee agreement is discussed and signed.

Yes, but courts handle that in different ways. Unlike in criminal cases, a defendant in a civil case can be deposed and called to the witness stand and interrogated. However, he/she still can take the Fifth Amendment right not to incriminate themselves, which they will do if there are criminal charges pending. While plaintiff lawyers enjoy having a defendant “take the 5th” repeatedly concerning their conduct, most trial judges will abate the civil suit until after the criminal case is resolved so as to avoid prejudice for someone exercising their constitutional rights.

Another consideration is insurance coverage. As most of the cases the firm handles are very time consuming and expensive, a defendant having the ability to pay a judgment is key to our representation. If an act is intentional, there may be no insurance coverage. So, there have been times when we have advised clients not to press for charges as to do so would let the insurance company off the hook for payment of a judgment. The firm had such a case when we represented the parents of a young lady overdosed to death by her physician husband. The parents' refusal to give up on the criminal charges almost cost them a very good settlement, but the issue was mooted by a jury finding of not guilty to murder charges – an error by the district attorney failing to include lesser degrees of manslaughter. But, that kept the insurance company on the hook and they settled. Additionally, the results of the criminal case would be inadmissible in evidence in the civil suit, guilty or not guilty.

Yes. The beneficiaries of the Will share in the survivorship claims that belong to the estate. That cause of action is considered an asset of the estate and the recovery will then be distributed per the terms of the Will. On the other hand, wrongful death claimants are determined by law and as set forth above. A person cannot Will away an heir’s right to bring suit for their wrongful death.