Death Cases

There are two components to a case involving the death of a plaintiff, the survival action and the wrongful death action. The survival action represents the pain and suffering and mental anguish that the victim suffered before death. The wrongful death action is an action by the victim's heirs for their own mental anguish and/or loss of support as a result of the death of their loved one.

Law sets forth a specific law on who can legally recover for the wrongful death of a loved one. Generally, if a married person who has children dies, the spouse and the children have a claim for wrongful death. The spouse has the survival action. The children cannot also have the survival action since it represents the victim's suffering not their own suffering.

If a person dies without a spouse, then the children have the survival and wrongful death actions. If a person dies without a spouse or children, then the surviving father and mother of the deceased may bring the actions. If the deceased left no spouse, children and no surviving parents, then his surviving brothers and sisters inherit the actions.

Thus, the parents of a deceased victim do not have the right to bring a claim for the wrongful death of their child if the deceased is survived by a spouse or children.

Medical Malpractice Cases

In a medical malpractice case, the $500,000 cap on damages is the total amount recoverable regardless of the number of people making the claim. Thus, in the case where a deceased is survived by a spouse and seven children, the $500,000 is split among all of them even though their total losses far exceed that amount.

Since the only damages not covered by the cap are the past and future medical expenses, if a patient dies as a result of the medical malpractice, the surviving heirs are deprived of the only amount outside the cap. This is particularly harsh when the deceased is a wage earner and the family depended upon that income for support.

Does not allow the recovery of punitive damages in medical malpractice cases and virtually all other personal injury cases (except DWI). Only damages to compensate the victim for their actual losses and mental anguish are generally recoverable. Thus, even in a wrongful death case not covered by the medical malpractice cap (an auto accident for example), the death of a loved one, excluding the loss of wages component, is only worth between $150,000 and $500,000.