When a patient dies from medical malpractice in Texas, it’s sometimes possible to bring a wrongful death claim.
Whether there’s a viable wrongful death claim depends on the specific facts of the patient and surrounding circumstances. A top-rated, experienced Texas medical malpractice attorney can help you determine whether a wrongful death claim can be made.
Wrongful death claims in Texas
At common law, there’s no such thing as a wrongful death claim—the claim dies with the person.
That’s why state legislatures stepped in to pass statutes that allow wrongful death claims to proceed under limited circumstances.
The Texas wrongful death statute is codified at Texas Civil Practice & Remedies Code Chapter 71. Section 71.004 provides that the only people who can bring a wrongful death claim are the following living relatives of a deceased person:
• Surviving spouse
• Surviving parents
• Surviving children
These individuals are called wrongful death beneficiaries.
In some other states, the relations are more expansive, but under Texas law, these are the only people who can bring a claim. This means that grandparents, aunts, uncles, cousins, boyfriends, girlfriends, and other relatives don’t have a wrongful death claim under Texas law, regardless of how close they were to the deceased person—or how terrible the malpractice was.
In general, the statute of limitations for Texas wrongful death claims is two years.
Medical malpractice tort reform still applies
Determining that there’s a possibility to bring a wrongful death claim in a Texas medical negligence case is just the first box to check. These complex claims are still subject to the Texas tort reform laws that apply specifically to medical malpractice claims.
That’s why it’s so important to hire a lawyer with significant experience in handling Texas medical malpractice wrongful death claims.
One of the most demanding provisions of Texas Civil Practice & Remedies Code Chapter 74 requires plaintiffs in medical malpractice claims to produce expert reports early in litigation. There must be at least one report by a physician and sometimes multiple reports from physicians, nurses, and other healthcare providers are necessary.
Plaintiffs’ expert reports are all due within 120 days of each defendant filing an answer in the lawsuit. This is a front-loaded deadline that requires expert reports before depositions or other investigations through standard discovery tools. If the deadline is missed or the reports are found to be insufficient, the case will be dismissed and the trial court will order the plaintiff to pay the defendants’ attorney’s fees.
After satisfying the expert report requirement, other tort reform provisions apply. One includes a cap on non-economic damages (basically, anything the jury awards other than lost income and medical bills). Another allows defendants to request the court to order pay-out of future damages for medical bills and care in periodic payments rather than a lump sum.
A cap within a cap
Texas medical malpractice tort reform laws mandate another cap that applies in wrongful death cases. This creates a cap within a cap situation.
The general medical malpractice cap, which I described above, only applies to non-economic damages.
The cap created by Texas Civil Practice & Remedies Code Section 74.303 is different. It’s an overall cap on all wrongful death medical malpractice damages in the amount of $500,000. This cap applies to all categories of damages, meaning both economic and non-economic damages.
Fortunately, this cap is indexed to the Consumer Price Index (CPI), based on the date of August 29, 1977. The idea for this indexing is to take into account the effect of inflation. At the time of this writing, the CPI raised the cap from $500,000 to approximately $2.3 million.
To apply the caps correctly involves first applying the non-economic damages cap and then the wrongful death cap.
Experience matters
I’ve written and spoken many times about how Texas medical malpractice law is kind of like navigating through a minefield. It’s certainly an area of the law where experience matters. If you have a potential Texas medical malpractice wrongful death claim, contact a top-rated, experienced Texas medical malpractice attorney for a free strategy session about your potential claim.
