After the victim of a personal injury or the family member of a person killed in an accident contacts an attorney, he or she will most likely make a blue print of the personal injury case. It is the job of the personal injury lawyer to examine critically the facts of the case to prepare for an effective settlement or trial verdict. Because of the differences in the nature of the recoveries between personal injuries and wrongful death, legal counsel will carefully examine the nature of the accident, what information is necessary to prove damages, who will recover compensation, what is the nature of the recovery, whether statutes of limitation affect the case and other issues. Birth injury cases are a unique type of medical malpractice claim that require special consideration from an experienced personal injury attorney.
What Are the Necessary Elements in a Catastrophic Injury Case in Texas?
To begin a personal injury lawsuit, the injured party (the plaintiff) sues the person or entity who injured him or her (the defendant). In Texas, to successfully obtain damages for a personal injury, a plaintiff must prove the elements of his or her case, including that (1) the defendant owed a duty to the plaintiff; (2) the defendant breached the duty; and (3) the plaintiff suffered damages that were caused by the breach.
Before and during the trial, an experienced personal injury attorney will develop the case to show the plaintiff’s injuries and damages using testimony from lay witnesses, as well as from expert witnesses to show the degree of the plaintiff’s injuries and that the defendant’s breach of duty caused the plaintiff’s injuries. The plaintiff may claim numerous types of damages, including past and future medical expenses, loss of earnings and earning capacity, pain and suffering from the injuries, and certain other damages.
What are the Necessary Elements in a Wrongful Death Case in Texas?
A wrongful death case involves a claim for damages stemming from another person’s death. The plaintiffs in wrongful death cases will be certain people designated in the Texas Wrongful Death Act or in federal statutes. For example, the Texas act provides that spouses, children and parents can sue for wrongful death damages for monetary losses and loss of companionship.
Another question that may arise when a personal injury victim dies is what happens to the deceased individual’s personal injury claims. The deceased person may have had medical expenses, and pain and suffering claims that arose prior to his or her death. These claims survive after death and become part of the deceased’s estate. Therefore, those that stand to benefit from the deceased’s will or through inheritance will have standing to pursue the deceased’s personal injury claims. Sometimes, these beneficiaries are the same persons as those authorized to sue by the Texas Wrongful Death Act.
Birth Injuries As a Type of Medical Malpractice
Birth injuries can occur to a child during or immediately after birth because of complications related to the birth or negligence on the part of medical professionals attending to the birth, a form of medical malpractice. Birth injury claims and other claims of medical malpractice follow procedures set out by Texas’ Medical Liability and Insurance Improvement Act.
In a birth injury case, the birth injury may be noticeable at birth or it may not become apparent until later in the child’s development. Unfortunately, birth injuries, like some other medical malpractice injuries, can be difficult to detect, sometimes causing diagnostic delays. This delay may affect a birth injury claim because of the statute of limitations period for personal injury claims, which in Texas is two years from the date the injury accrues. The statute of limitations bars claims that are not made in timely fashion under the statute, thus the date an injury accrues can be a point of contention in birth injury litigation.
If you were seriously injured, or a family member was killed in an accident, you should speak with legal counsel about the merits of your case as soon as possible. For injuries that occurred during birth, you should seek legal advice as soon as the injury is apparent to avoid having your claim barred under Texas’ statute of limitations.
Article provided by Chaiken & Chaiken, P.C.