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Medical Malpractice and Wrongful Death

In the most unfortunate of circumstances, a loved one is lost due to the negligence of a third party. Remedy or recovery for such a loss is addressed by bringing forth a Wrongful Death action which is addressed in Section 71 of the Texas Civil Practice and Remedies Code.

The surviving spouse, children, and parents of the deceased are the only parties that may bring a Wrongful Death claim. Parties can recover compensation for things such as lost wages, mental anguish, loss of inheritance, and the value of the care and maintenance they would have provided their family had they survived.

Generally, the Wrongful Death claim is available to the parents for the loss of a baby lost during pregnancy. For example, suppose Jane Smith, who is 30 weeks pregnant, was involved in an auto accident. If the forces of the accident caused Mrs. Smith to go into labor and deliver her baby, but the baby was born a stillborn or died soon after birth, Mrs. Smith and the baby’s father would have a Wrongful Death claim for the loss of their child.

However, there are exceptions to the Wrongful Death claim, which are found in Section 71.003 of the Texas Civil Practice and Remedies Code. Under that section, if a parent is alleging a Wrongful Death claim for the loss of a child due to “the intended result of a lawful medical procedure performed by the physician or health care provider with the requisite consent,” “the result of the dispensation or administration of” a drug, or “a lawful medical or health care practice or procedure of the physician or the health care provider,” recovery for Wrongful Death is only available if the baby had lived or had been born alive.

Many would argue that if a mother alleges that her physician breached his or her duty to her and caused her baby to die (i.e. by causing a miscarriage or causing her to give birth to a stillborn), the mother may bring a Wrongful Death claim against the physician only if the baby was born alive.

Medical malpractice is a difficult area of law as it requires an understanding of both the legal practice and the mechanics of medicine. Abraham Watkins offers a free consultation to anyone wishing to pursue such claims.

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