Losing a family member is devastating under any circumstances. When the death follows a medical error that may have been preventable, grief often comes with hard questions: what went wrong, whether it could have been avoided, and who should be held responsible. Texas law gives families a way to seek answers and accountability, but it also sets deadlines and procedural steps that begin running sooner than many people expect.
At Davis & Davis, our Houston attorneys represent families after fatal medical errors through our wrongful death practice. This post explains how the two claims that can follow a death, a wrongful death claim and a survival claim, fit together with the special rules Texas applies to claims against doctors and hospitals, so your family can make informed decisions without losing time you may need.
How Often Medical Errors Lead to Death
Medical errors are a recognized cause of preventable death. The Institute of Medicine’s 1999 report To Err Is Human estimated that at least 44,000, and perhaps as many as 98,000, people die in U.S. hospitals each year because of medical errors. Later researchers have debated the exact numbers, but the report changed how hospitals think about patient safety.
The fatal errors families most often ask us about include surgical mistakes, anesthesia errors, medication errors, missed or delayed diagnoses of conditions such as sepsis, stroke, heart attack, or cancer, inadequate monitoring after surgery, and infections that spread because safety protocols were not followed.
Two Claims That Can Follow One Death
Texas law recognizes two separate claims when a person dies because of someone else’s wrongful conduct. They protect different people and cover different losses, and they are often brought together in one lawsuit.
The Wrongful Death Claim
Under Chapter 71 of the Texas Civil Practice and Remedies Code, a wrongful death claim is for the exclusive benefit of the deceased person’s surviving spouse, children, and parents. One or more of them may bring the claim for the benefit of all. If none of them has filed within three calendar months after the death, the executor or administrator of the estate must bring it, unless all of those family members ask that it not be filed. A wrongful death claim compensates the family for their own losses, such as lost financial support, loss of companionship and guidance, and mental anguish.
The Survival Claim
A survival claim is the claim the patient could have brought if they had lived. Section 71.021 provides that a personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person. It covers the patient’s own losses before death, such as pain and suffering, mental anguish, and medical expenses from the final illness or injury, and funeral costs are often addressed through the estate as well.
How Chapter 74 Changes the Rules
When the death involves a doctor, nurse, hospital, or other health care provider, both claims are generally treated as health care liability claims under Chapter 74, the Texas Medical Liability Act. That law adds requirements that ordinary wrongful death cases do not have:
- Pre-suit notice: Section 74.051 requires written notice, with a signed medical authorization, to each provider at least 60 days before a lawsuit is filed. Proper notice pauses the filing deadline for 75 days.
- Filing deadline: Section 74.251 generally requires filing within two years of the error or the completion of the related treatment or hospitalization, not two years from the date of death, with a 10-year statute of repose. If a patient died months after the error, the time left can be shorter than a family expects.
- Medical report: Section 74.351 requires the family to serve a report from a qualified medical professional on each defendant within 120 days after that defendant answers, or the claim can be dismissed.
- Damages limits: Section 74.301 limits noneconomic damages, and Section 74.303 caps total damages in a wrongful death or survival action on a health care liability claim at $500,000 per claimant, adjusted for inflation since 1977, with past and future medical, hospital, and custodial care expenses excluded from that cap.
These rules are one reason we encourage families to speak with a lawyer early, even before they are sure they want to pursue a claim. Gathering records and having them reviewed by qualified medical professionals takes time, and the 120-day report deadline leaves little room once a suit is filed.
Steps to Take in the First Weeks
The days after a death are overwhelming, and no family should feel pressure to make every decision at once. A few steps, though, can protect your options. Request complete medical records from the hospital and every treating provider; our article on securing medical records after a wrongful death explains who can request them and how. Keep discharge papers, medication lists, bills, and any written communication with the care team. Write down what you remember about the patient’s symptoms and what staff said, with dates where you can.
If the cause of death is unclear, ask whether an autopsy was performed, and consider whether an independent autopsy makes sense; this decision is time-sensitive. If the estate will need an executor or administrator, that process can also affect who can sign for records and bring the survival claim.
How Davis & Davis Helps Families
Holding a hospital or physician accountable for a fatal mistake requires showing what happened, how the care fell below the accepted standard, and what your family has lost. Our firm focuses on medical malpractice, and we represent families in cases involving fatal complications following surgery and all other types of fatal medical errors that occur in Texas hospitals and clinical settings. We work with qualified medical professionals to review the records, and we explain each step so your family can focus on one another. Every case is different, and we cannot promise a particular result.
If you have questions about the care your family member received, you can learn more in our article on suing a hospital for wrongful death in Texas, or speak with a member of our team at no cost through our online contact form.
Frequently Asked Questions About Fatal Medical Errors in Texas
Can I sue a hospital if a family member died because of a medical mistake?
Yes, in many cases. When a patient dies because a physician or hospital failed to meet the applicable standard of care, the surviving spouse, children, and parents may bring a wrongful death claim, and the estate may bring a survival claim. The family must show that the care fell short, that this caused the death, and what losses resulted.
How long do I have to file a wrongful death claim for medical malpractice in Texas?
Generally two years, but for claims against health care providers the period usually runs from the date of the error or the end of the related treatment or hospitalization, not from the date of death. Proper pre-suit notice pauses the deadline for 75 days, and a 10-year outer limit applies. Because the clock may already be running, it is best to have the dates reviewed promptly.
What do I need to prove in a wrongful death medical malpractice case?
Generally, that the provider owed the patient a duty of care, that the care fell below the accepted standard, that this failure caused the death, and that the family suffered damages as a result. Texas also requires a report from a qualified medical professional, served within 120 days after each defendant answers, explaining the standard of care, the breach, and the causal link.
What compensation can my family recover if a family member died due to a medical error?
A wrongful death claim can cover the family’s lost financial support, loss of companionship and guidance, and mental anguish. A survival claim can cover the patient’s own pain and suffering and medical expenses before death. In cases against health care providers, Texas caps total damages per claimant, adjusted for inflation, but past and future medical and custodial care expenses are excluded from that cap.
What is the difference between a wrongful death claim and a survival action in Texas?
A wrongful death claim belongs to the surviving spouse, children, and parents and compensates them for their own losses from the death. A survival action passes to the patient’s heirs, legal representatives, and estate and compensates for the harm the patient suffered before death. Both are often pursued together in one lawsuit.
What happens if no family member files the wrongful death claim?
If none of the eligible family members has filed within three calendar months after the death, Texas law requires the executor or administrator of the estate to bring the claim, unless all of those family members request that it not be brought.
