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Do I have to file for probate before filing a Texas medical malpractice wrongful death lawsuit?

Painter Law Firm's frequently asked question (FAQ) series

When a person dies because of medical malpractice, there are potential survival claims and wrongful death claims to consider. Both types of claims are governed by a two-year statute of limitations.

Survival claims belong to the estate of the deceased person. For survival claims, there’s the general rule that only the personal representative of the estate of the deceased person has the right to file suit. In some cases, though, there’s an exception. Heirs at law (which are more expansive than the wrongful death beneficiaries limited by statute) can sue on behalf of the estate so long as they allege and prove that there’s no pending administration of the estate and none is necessary.

Survival claims include things like these expenses and damages:

• medical expenses of the deceased person before death

• funeral and burial expenses

• lost wages or earnings of the deceased person before death

• pain, suffering, and mental anguish of the deceased person before death

Under Texas law, wrongful death claims can be filed only by those relatives defined by law: parents, spouse, and natural or adopted children. There’s no legal requirement that every wrongful death beneficiary participate in a lawsuit; however, most defendants will require every wrongful death beneficiary to sign off on a settlement agreement.

Wrongful death claims may include the following elements:

• lost wages or earnings of the deceased person that would have been earned after the date of death through his or her expected work life

• pain, suffering, and mental anguish of the wrongful death beneficiaries over the death of their loved one

Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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