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Wrongful death claims and the statute of limitations

| Dec 17, 2016 | Wrongful Death

Texas laws put a time limit, known as a statute of limitations, on how long you have to file a wrongful death claim—but there are some important things about that time limit that you should know.

— If the wrongful death is related to medical malpractice, the start date could be earlier than you realize.

Many wrongful death claims are the result of medical negligence, or malpractice. Under Texas law, the statute of limitations actually starts counting on the date the malpractice occurred if that date is known, not the date of the victim’s death. For example, if a doctor misdiagnosed a patient’s esophageal cancer as a relatively minor case of gastrointestinal reflux disease and the patient later died, the clock on the statute of limitations would most likely start when the misdiagnosis was made, not when the patient died.

— If the date of the medical malpractice is unknown, the court will use an alternate starting date.

It may not be possible to determine exactly when the medical malpractice that led to the wrongful death occurred. When that happens, the statute of limitations begins to run on the last day of treatment, not the date of the patient’s death.

— There are some situations that may cause the statute of limitations to “toll,” or stop counting.

In rare cases, the clock on the statute of limitation will stop ticking because the person who is legally entitled to file a claim isn’t capable of doing so. Usually, this is because the rightfully-entitled plaintiff is a minor or mentally incapacitated in some way. For example, a minor typically has two years from the date that he or she turns 18 to file a claim for the wrongful death of a parent.

The laws regarding the statute of limitations on wrongful death are complex and you don’t want to make any assumptions about what applies to your case without the advice of an attorney. If you fail to file a claim for wrongful death within the correct amount of time, the defense can ask the court for a summary judgment. If they’re successful, your case will be dismissed without being heard. To help prevent this possibility, consider contacting one of our attorneys as soon as possible to discuss your situation.

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