Posted in Personal Injury on May 13, 2024

If your loved one sadly succumbs to an injury or illness while in the middle of a personal injury case in Texas, it may fall to you to settle the deceased person’s estate and finish unresolved litigation. In Texas, the continuance of a personal injury claim that was filed prior to someone’s passing is known as a survival action. This type of lawsuit can allow your family to continue to give your deceased loved one a voice in the justice system.

What Is the Texas Survival Statute?

The Texas Survival Statute, Section 71.021 of the Civil Practice and Remedies Code, gives certain surviving family members the right to continue a personal injury case that was filed by the victim prior to death after he or she passes away. This right exists whether the decedent passed away due to the injury or illness involved in the claim or from an unrelated cause.

The Texas Survival Statute states: “SURVIVAL OF CAUSE OF ACTION.  (a)  A cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person or because of the death of a person liable for the injury.” 

In other words, the right to seek justice for a personal injury does not die with the claimant; it survives and permits family members or the administrator of the decedent’s estate to continue it on the victim’s behalf. A survival action will continue the personal injury case filed as if the deceased person were still alive.

Who Can Recover Compensation Through a Survival Action?

Under state law in Texas, a survival action allows beneficiaries of the deceased person, the decedent’s estate and/or the decedent’s legal representative to recover damages or financial compensation from an at-fault party. 

A successful survival action could provide these parties with compensation for the following losses:

  • The decedent’s pain, suffering and emotional distress
  • Medical expenses from the date of the accident until the date of death
  • Lost wages the decedent incurred prior to death
  • Loss of consortium, or the victim’s loss of the ability to provide companionship and support to loved ones prior to death
  • Funeral and burial expenses incurred by the estate after the death

Any financial compensation that the decedent could have pursued if he or she were still alive could be awarded to the decedent’s estate or beneficiaries in a survival action. The value of the case will depend on the circumstances, such as the decedent’s age at the time of death and the insurance coverage available.

How Does a Survival Action Differ From a Wrongful Death Claim in Texas?

A survival action is not the same as a wrongful death claim. A survival action focuses on the decedent’s losses, as it is a continuation of the victim’s personal injury case. A wrongful death claim, on the other hand, is filed on behalf of surviving family members or beneficiaries. It focuses on the losses they have suffered as a result of the death, such as the loss of the victim’s financial support, companionship and care.

The statutes that apply to a wrongful death case in Texas differ from a survival action. Your family may be required to abide by different rules and filing deadlines, for example. It is important to consult with an attorney who specializes in personal injury, wrongful death and survival actions in Texas to help your family understand the nuances of these legal actions.