Law Alerts
TEXAS LAW ALERT — WINTER 2002 ISSUE
WRONGFUL DEATH AND SURVIVAL: IF THE WORST HAPPENS
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Many of us, at some time or another, will have to deal with an accident that causes some minor injury: a traffic accident, a slip at a store, or a sports injury. Some of us, however, will be called on to deal with a much more serious accident, one that causes the death of a close family member. Although you always hope this will never happen to you, the following article discusses some things you need to know if the worst does occur.
The death of a family member can give rise to two separate but related claims: a wrongful death claim and a survival claim. Generally speaking, both of these claims are negligence claims that arise when someone’s death is caused through the carelessness of another. However, despite both being negligence claims, there are important differences between wrongful death and survival claims.
A wrongful death claim is a claim brought on behalf of those family members who have survived the deceased, such as that person’s spouse, children, and parents. A wrongful death claim seeks compensation for the survivors for the loss they have suffered due to the wrongful death caused by another.
In contrast, a survival claim seeks compensation for the pain, suffering, and loss of life caused to the deceased personally. Since the deceased is no longer able to bring the claim on his or her own, a survival claim is brought by the representative of the deceased’s estate, usually known as the executor or the administrator.
Because wrongful death and survival actions are legally separate claims, they allow recovery of different elements of damage. For example, a wrongful death claim brought by the surviving family members includes such items as the loss of companionship and society that they would have enjoyed if the deceased had not died and recovery for the value of some of the services that would have been provided had the death not occurred. The family can also recover for direct financial losses, such as the loss of a probable inheritance, and for the loss of the financial support that would have been received over the years. In a survival action, the damages that are recoverable include the pain and suffering the deceased felt before dying, medical bills and final expenses incurred because of the death, and any property damage caused by the accident that led to the death.
The mechanics of making a claim is different in a wrongful death suit than in a survival suit. In a wrongful death suit, the claimants are the survivors, whereas in a survival suit the claimant is the person in charge of the deceased’s estate. Fortunately, because the facts underlying the claims are usually related, and because the estate representative is often also a survivor of the deceased, wrongful death and survival claims are often brought and tried together.
While nobody looks forward to dealing with a wrongful death or survival suit, the sad fact is that it is sometimes necessary. We hope this article will make it easier to deal with these issues if the occasion ever arises.
HERE’S WHAT OUR FIRM CAN DO FOR YOU
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The last thing most people think of after the death of a family member is calling a lawyer, but there are many important reasons to do so. First, we can help you determine if you have a wrongful death and/or survival claim at all. And, the sooner you contact our firm, the sooner we can work to preserve valuable evidence that will help you win your case.
We can help you negotiate the often complex legal world and arrange for the necessary expert witnesses and others essential to proving your claim. We will work out an arrangement that means you do not have to pay for this expert advice and assistance by the hour. Please call us if you ever have any questions on these issues. Remember, the better your case, the more likely that an insurance company representative will contact you offering a fraction of what you deserve.
BAYCOL Q&A
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What Is Baycol?
Baycol (also known as Lipobay) is the trade name given a drug intended to lower cholesterol and to reduce the risk of a heart attack. Baycol is a member of the family of drugs known as statins and is manufactured by Bayer Pharmaceutical. Baycol has been prescribed to approximately 700,000 Americans.
Why Was Baycol Recalled?
Baycol was voluntarily recalled in August of this year because of a link between taking Baycol and a rare condition known as rhabdomyolysis. This life-threatening condition destroys muscle cells, which are then released into the bloodstream. Rhabdomyolysis typically causes severe muscle pain and kidney failure, which can be fatal.
What Are the Symptoms of Rhabdomyolysis?
In addition to severe muscle pain, other symptoms include weakness, tenderness, fever, vomiting, and passing dark urine.
What Should I Do if I Take Baycol?
If you have been prescribed Baycol, contact your physician immediately to discuss alternative drugs that may be available. If you are taking Baycol and experience muscle pain, discontinue the Baycol immediately and contact your physician.
What if I Suspect I Have Been Injured by Baycol?
Contact our office to discuss your case. Do not delay, as there are time deadlines for bringing legal action.
WHY ARE MY RATES SO HIGH?
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Have you ever wondered how insurance companies determine what to charge drivers for auto insurance? The answer is surprisingly complex, because the insurance companies consider many different factors in setting your rate.
The first factor encompasses “personal” matters, those that are based on who you are. Personal matters include your age (younger drivers are charged higher rates; older drivers often qualify for discounts) and marital status (married drivers often get discounts). The second factor is your driving record. Clearly, a driver who has been in a number of accidents will pay more than a safe driver who has never been in an accident. The third factor depends on the policy you buy. A commercial policy covering a delivery truck that drives around all day will usually be more expensive than a policy for the family car. Also, if you choose a policy with a higher deductible, your rate usually will be lower. Finally, the amount you pay depends on the kind of car you have and where you live. A luxury car costs more to insure than a clunker, and cars in urban areas are more expensive because they are more likely to be damaged in an accident or stolen.
Many factors determine how much you pay for insurance. Although you cannot control all of them, knowing what they are can help you lower your insurance rate.
CASE BY CASE
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Drama Danger
The Texas Supreme Court recently affirmed a $350,000 jury award given to a Texas A&M student who was injured during a production of Dracula. The script called for the student to be stabbed by another actor, but the director took the script too literally, using a real Bowie knife for the stabbing scene, rather than a prop. Although the injured student was wearing a “stab pad” that was designed to protect him, the knife missed the pad and stabbed him through his lung. It just goes to show that you can never tell when or how you might be injured.
A Chain of Events
In another recent case, the family of a deceased truck driver received a $1.6 million verdict in a wrongful death case. Windel was injured when he slipped and fell on a poorly designed truck scale. The fall ruptured a ligament in his knee and he had to have surgery to have the ligament reattached. However, after the surgery, the wound became infected. After several follow-up surgeries, including amputation of most of the injured leg, Windel eventually died from the infection. The jury ruled that Windel’s wife and family were entitled to $1.6 million in damages.
REPORT BASHES NURSING HOMES
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There are approximately 17,000 nursing and elder care homes in the United States, serving a total of nearly 1.5 million seniors. Disturbingly, within the last two years, over 1,600 of these homes–almost one out of every ten–have been cited by state inspectors for violations serious enough to cause actual harm to their residents or which place the residents in immediate danger. Another 3,700 homes were cited for lesser violations. In all, almost one in three nursing homes were cited for a serious violation of policies or procedures that could endanger their residents.
The report containing these statistics, prepared by a U.S. Congressman, also shows that the percentage of homes cited for abuse or neglect has doubled since 1996. Perhaps worst of all, almost 40% of the citations of abuse were issued only after a formal complaint had been filed against the home, raising the question of how many cases of abuse or neglect go unreported each year.
Although there are many reasons for the poor quality of care at many homes, one of the most frequently cited is the low pay of many nursing home workers. The national average wage for a certified nurse’s aid at a nursing home is only $8 per hour and many experienced workers find that they can earn more money working elsewhere, even at the local burger joint. Because most nursing homes are for-profit operations, the incentive is to keep wages low and to cut corners whenever possible to boost the bottom line, an approach that can result in the problems discussed above.
These sobering numbers reinforce the need to keep vigilant when a family member or loved one moves into a nursing home or other care facility. Given the apparently increasing rates of abuse, the underpaid and undertrained staff at many homes, and the often inadequate oversight by state inspectors, the burden of protecting nursing home residents often lies with their families and friends. Don’t be afraid to ask questions or file a report if you suspect something is wrong.
CHILDREN’S BOOK RECALL
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Candlewick Press, in cooperation with the U.S. Consumer Product Safety Commission (CPSC), is recalling about 78,670 “Bunny My Honey” children’s board books. Board books have thick, cardboard-like pages covered with a thin plastic laminate.
The “Bunny My Honey” books pose a potential choking hazard because the plastic lamination on the book may peel off. While there have been no reports of injuries due to this defect, the recall is intended to prevent the possibility of injuries.
These books have been sold nationwide from December 200 through September 2001. The title “Bunny My Honey” is printed on the front cover. Only books with “Printed in Italy” are being recalled; books printed in Mexico are not included.
If you own one of these books, take it away from any young children immediately and discard it. You can go to the firm’s website at www.candlewick.com to receive a free replacement book, or contact Candlewick Press at 800-883-0009 between 9 a.m. and 5 p.m. ET Monday through Friday.
THEY SAID IT
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The following things were actually said by people in courtrooms across the country.
Q: What is your date of birth?
A: July 15th
Q: What year?
A: Every year.
Q: And where was the location of the accident?
A: Approximately milepost 499.
Q: And where is milepost 499?
A: Probably between milepost 498 and 500.
Q: Can you describe the individual?
A: He was about medium height and had a beard.
Q: Was this a male or female?
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The period of time following an accident is one of confusion and uncertainty. There are many things to take care of. Hiring a good lawyer is one of them.
Many times, people don’t know where to go when they need legal help. If you or a loved one has been injured in an accident, call us. We will vigorously represent you and make sure that you are justly compensated for your injuries. That’s our job.