When someone passes away due to a preventable accident or intentional act in Texas, their loved ones can file a wrongful death claim. However, these claims don’t cover every aspect of the loss.
Specifically, damages suffered by the victim before their death—such as physical pain, suffering, and medical expenses—are only recoverable through the Texas survival statute. This critical law allows families to step into the decedent’s shoes and continue the personal injury claim the person could have filed if they had survived the incident.
This article explains how both the wrongful death and the survival laws work together to provide fuller accountability after tragedy and maximize the compensation recovered by grieving families.
Wrongful Death vs. Survival Actions Explained
The distinction between a wrongful death claim and a survival action is based entirely on who suffered the loss.
Wrongful Death Claim: This action compensates the surviving family members (spouse, children, and parents) for the losses they suffered as a result of the death. These damages typically include loss of companionship, loss of inheritance, loss of support, and mental anguish. It focuses on the harm to the survivors.
Survival Action: This action is filed on behalf of the deceased person’s estate and compensates for the damages the victim suffered between the moment of injury and the moment of death. It essentially preserves the personal injury claim that the decedent would have had if they had lived.
Both claims are often filed simultaneously in a single lawsuit, as they arise from the same incident of negligence.
What Damages Families Can Recover Under Survival Law
A survival action allows the estate to recover damages that would have been available in a standard personal injury case. These specific forms of recovery are often substantial and can include:
- Conscious Pain and Suffering: This compensates for the physical pain, agony, and mental anguish the deceased experienced from the moment of injury until death. Evidence, often from medical records or witness testimony, must show the victim was conscious for some period to experience this suffering.
- Medical Expenses: All medical, hospital, and ambulance bills incurred while treating the victim’s final injury before death are recoverable through the survival action.
- Lost Wages/Earnings: Any income the victim lost between the time of the injury and the date of their death can be claimed.
Unlike wrongful death claims, which focus on future financial losses to the family, the survival statute focuses on the immediate, pre-death economic and non-economic harm suffered by the individual themselves.
When a Survival Action Is Allowed
The Texas survival statute (Texas Civil Practice & Remedies Code § 71.021) permits the continued prosecution of a personal injury cause of action by the heirs or legal representatives of the deceased person’s estate.
Crucially, the law requires that the underlying injury claim could have been brought by the individual had they lived. This means the death must have resulted from the negligence, carelessness, or default of another party.
If the death was instantaneous and there was no period of conscious pain or suffering, the survival claim for pain and suffering may not be available, though claims for pre-death medical expenses usually still are. This requires careful investigation into the immediate aftermath of the injury.
How These Claims Increase Total Compensation
The combined effect of a wrongful death claim and a survival action is a much larger and more comprehensive total compensation package for the family. Without the survival action, the family would only recover for their own, post-death losses, leaving massive expenses like the decedent’s final medical bills unpaid and failing to account for the victim’s own suffering.
The survival action adds back these pre-death damages, which often include high-value items like extensive hospital stays and intensive care unit costs. When both are successfully argued, the overall recovery ensures that the negligent party is fully held accountable for the entire scope of the harm caused, from the victim’s first moments of injury to the family’s long-term loss.
Conclusion Protecting Every Aspect of the Victim’s Loss
After a sudden and tragic death, families face not only emotional devastation but also profound financial uncertainty, often compounded by overwhelming final expenses. The Texas survival statute is a vital legal tool that ensures the responsible party is held financially accountable for every penny of damage caused.
By filing both a wrongful death claim and a survival action, families protect the financial legacy and legal rights of their loved one, covering everything from the victim’s pain before death to the family’s mental anguish afterward. Understanding the dual nature of these claims is essential for securing the maximum possible compensation and achieving justice.