Texas Wrongful Death: A Northern Virginia Family’s Guide

By Anthony I. Shin, Esq., Shin Law Office

1. Why Northern Virginia Families End Up With Texas Wrongful Death Cases

Northern Virginia and Texas are connected by an enormous volume of business and family travel. Houston Intercontinental (IAH), Hobby (HOU), Dallas-Fort Worth (DFW), Dallas Love (DAL), Austin-Bergstrom (AUS), and San Antonio (SAT) handle tens of millions of passengers each year, with a meaningful share connecting to or from Reagan, Dulles, and BWI. Federal contractor travel to Houston (energy industry), San Antonio (military and medical), Dallas (technology and finance), and Austin (technology and government) is constant. The Texas Medical Center in Houston is one of the largest medical complexes in the world and draws specialty care patients from across the country, including Northern Virginia. Texas is the second-most-common destination for Northern Virginia business travel after California and New York.

In my practice, Texas wrongful death cases involving Northern Virginia families come from recurring patterns. A federal contractor on assignment to an energy client in Houston dies in a workplace incident, a hotel fire, or an interstate crash. A retiree seeks cancer treatment at MD Anderson and dies from a delayed diagnosis or treatment error. A college student attends Rice, UT Austin, Texas A&M, or SMU and dies in a fraternity incident, vehicle crash, or off-campus violence. A family on a Texas vacation dies in a single-vehicle rollover on rural Texas highways. A business traveler dies in a Dallas or Houston hotel from a slip-and-fall, an elevator incident, or food poisoning. A grandparent visiting grandchildren in suburban Texas dies after a defective product incident at a backyard barbecue. Each pattern produces a Texas wrongful death case with a Northern Virginia family.

Texas is one of the most legally complex jurisdictions for wrongful death because the split between general claims (uncapped) and medical malpractice claims (capped at $250,000 per physician and $250,000 per facility) produces very different outcomes depending on the case type. Identifying whether the case falls under Chapter 71 (general) or Chapter 74 (medmal) is the first major analytical step.

2. Where Texas Sits on the Wrongful Death Map

Texas wrongful death law runs two distinct frameworks in parallel.

The general framework under Chapter 71. The Texas Wrongful Death Act at Civil Practice and Remedies Code Chapter 71, Subchapter A, allows broad recovery for the death of a person caused by the wrongful act, neglect, carelessness, unskillfulness, or default of another. Section 71.004 designates the surviving spouse, children, and parents as the statutory beneficiaries. Section 71.010 directs the jury to award damages “proportioned to the injury resulting from the death.” Texas Pattern Jury Charge 80.5 instructs juries to consider pecuniary loss, loss of companionship and society, mental anguish, loss of inheritance, and exemplary damages. There is no statutory cap on non-economic damages in general wrongful death cases under Chapter 71.

The medical malpractice framework under Chapter 74. The 2003 Texas Medical Liability Act, codified at Civil Practice and Remedies Code Chapter 74, changed the framework for medical malpractice wrongful death. Section 74.301 caps non-economic damages in medical malpractice cases at $250,000 against each physician or healthcare provider and $250,000 against each healthcare facility, with aggregate facility caps. The cap has been upheld against constitutional challenge in many Texas Supreme Court decisions. The cap applies no matter whether the case is brought as wrongful death, survival, or both. Medical malpractice wrongful death verdicts are much smaller than general wrongful death verdicts on similar facts.

The survival action. Section 71.021 keeps the decedent’s personal injury cause of action alive as a claim of the estate. The estate recovers for the decedent’s pre-death conscious pain and suffering, pre-death medical expenses, pre-death lost wages, and pre-death property damage. The survival action runs in parallel with the wrongful death claim. For medical malpractice cases, the Chapter 74 cap applies to non-economic damages in both the wrongful death and survival action; the caps are aggregated, not doubled.

Comparative fault. Chapter 33 sets modified comparative fault for negligence cases. Section 33.001 bars recovery if the claimant’s percentage of responsibility exceeds 50 percent. Section 33.012 reduces (does not bar) recovery proportionally for fault of 50 percent or less. Texas uses a 51-percent threshold (more than 50 percent bars recovery), not the 50-percent threshold used in some other states.

Joint and several liability. Chapter 33 substantially modified joint and several liability. Section 33.013 imposes joint and several liability only on defendants with fault percentages over 50 percent or for specifically listed claim types (toxic torts, certain intentional torts, certain DTPA claims). Most multi-defendant wrongful death cases run under several liability only, with each defendant paying its proportional share.

Exemplary damages. Chapter 41 governs exemplary (punitive) damages. Section 41.003 requires clear and convincing evidence of fraud, malice, or gross negligence. Section 41.008 caps exemplary damages at the greater of $200,000 or 2 times economic damages plus non-economic damages up to $750,000. The cap does not apply to certain listed felony conduct (kidnapping, sexual assault, certain DTPA claims, others) under Section 41.008(c). Exemplary damages must be unanimously awarded by the jury under Section 41.003(d).

Texas Tort Claims Act. Civil Practice and Remedies Code Chapter 101 governs claims against governmental units. Section 101.101 requires notice of claim within 6 months of the incident (some governmental units have shorter notice rules in their enabling statutes or charters; the City of Houston has a 90-day notice requirement under its city charter, for example). Section 101.023 caps damages against the state at $250,000 per person and $500,000 per occurrence; caps against units of local government are $250,000 per person and $500,000 per occurrence (with separate aggregate limits). Pre-suit notice and damages caps make Texas Tort Claims Act cases distinct from private-defendant cases.

Medical Expert Report. Section 74.351 requires the plaintiff in any medical malpractice case to serve an expert report from a qualified healthcare provider within 120 days of the defendant filing the original answer. The report must address the standard of care, the breach, and the causal connection to the injury. Missing the report within 120 days results in dismissal with prejudice and attorney’s fees against the plaintiff. The 120-day deadline is one of the most aggressive procedural requirements in any state.

3. Virginia’s Lex Loci Delicti Rule Applied to Texas

For a Northern Virginia family considering filing a Texas wrongful death case in Virginia courts, the choice-of-law analysis controls.

The McMillan rule. Under McMillan v. McMillan, 219 Va. 1127 (1979), Virginia courts apply the substantive law of the state where the wrong occurred. For a Northern Virginia family with a Texas wrongful death case, Texas substantive law applies: Chapter 71 (general wrongful death) or Chapter 74 (medical malpractice), Section 71.021 (survival action), Chapter 33 (comparative fault), Chapter 41 (exemplary damages), and the Section 74.351 expert report requirement if applicable. The Texas damages caps for medical malpractice and exemplary damages are substantive law that applies no matter the forum.

Virginia procedural law if Virginia is the forum. If a Northern Virginia family files in Virginia (state or federal court), Virginia procedural rules apply. The 2-year statute of limitations under both Virginia (Va. Code Section 8.01-244) and Texas (Section 16.003) is the same. Virginia contributory negligence does not apply because Texas substantive law controls; the Texas modified comparative fault rule under Chapter 33 applies.

Filing in Texas versus Virginia. Most Texas wrongful death cases I work for Northern Virginia families end up filed in Texas because that is where the evidence, witnesses, and defendants are. Texas state district courts in major counties (Harris County for Houston, Dallas County for Dallas, Tarrant County for Fort Worth, Travis County for Austin, Bexar County for San Antonio) have experienced personal injury and wrongful death dockets. The Southern District of Texas, Northern District of Texas, Eastern District of Texas, and Western District of Texas handle federal diversity cases involving Northern Virginia plaintiffs.

Personal jurisdiction. A Texas court has personal jurisdiction over a defendant who tortiously caused harm in Texas under the Texas long-arm statute (Civil Practice and Remedies Code Section 17.042). A Texas hospital, hotel, or business typically does not have enough Virginia contacts for Virginia personal jurisdiction.

Federal Tort Claims Act. FTCA cases follow Texas substantive wrongful death law where the act or omission happened in Texas. The federal employee tort triggers Texas Chapter 71 or Chapter 74 damages rules depending on the case type. Federal court venue with no jury trial.

Practical takeaway. For Northern Virginia families with Texas wrongful death cases, the choice-of-law analysis points to Texas substantive law no matter the forum, including the Chapter 74 medmal cap if applicable. The forum analysis usually points to Texas courts for practical reasons. I work with Texas local counsel admitted to practice in the appropriate Texas district for filing and court appearances.

4. General Wrongful Death Under Chapter 71

Chapter 71 of the Texas Civil Practice and Remedies Code governs general wrongful death cases, meaning cases not arising from medical malpractice.

Recoverable damages. Texas Pattern Jury Charge 80.5 lists the recoverable damages in general wrongful death cases: pecuniary loss (lost earnings, financial support, lost services, lost gifts and benefits the decedent would have provided to the beneficiaries), loss of companionship and society, mental anguish (the surviving beneficiaries’ own emotional suffering), loss of inheritance, and exemplary damages where the standard is met. Texas allows recovery for both economic and non-economic categories with no cap on general wrongful death.

Pecuniary loss. Lost financial support is quantified through forensic economist testimony covering projected earnings, work-life expectancy, fringe benefit contributions, personal consumption deductions, and discount-to-present-value. Lost household services are quantified through household services experts using BLS data on services hours and replacement-cost analysis. Lost gifts and benefits include the financial contributions the decedent would have made to beneficiaries over the decedent’s lifetime.

Loss of companionship and society. Pays for the loss of the decedent’s presence, conversation, and ongoing relationship. Quantified by jury based on testimony from surviving family members. Texas juries in major metropolitan areas (Harris County, Dallas County, Travis County, Bexar County) can award substantial loss-of-companionship damages in cases involving the death of a parent of minor children, a young spouse, or a similarly significant family relationship.

Mental anguish. Pays the surviving beneficiaries (spouse, children, parents) for their own emotional suffering, grief, and anguish from the death. Texas mental anguish damages in wrongful death cases have been substantial in cases with compelling testimony about the family impact. The standard requires more than mere worry or vexation; the family must show meaningful disruption of daily life.

Loss of inheritance. Pays for the value of inheritances the decedent would have left to surviving beneficiaries had the death not happened early. Quantified through estate planning evidence and economist analysis of expected estate value at the decedent’s natural life expectancy.

Exemplary damages. Available under Chapter 41 where evidence of fraud, malice, or gross negligence by clear and convincing evidence supports the award. Capped under Section 41.008 at the greater of $200,000 or 2 times economic damages plus non-economic damages up to $750,000.

No cap. General wrongful death damages under Chapter 71 are not capped (other than the Chapter 41 cap on exemplary damages specifically). Texas juries in major counties have produced eight- and nine-figure verdicts in serious general wrongful death cases.

5. Medical Malpractice Wrongful Death Under Chapter 74

Chapter 74 changed the framework for medical malpractice wrongful death in 2003. The cap structure produces meaningfully smaller recoveries than the general wrongful death framework allows.

The cap structure. Section 74.301 caps non-economic damages at $250,000 against each physician or healthcare provider and $250,000 against each healthcare facility. Aggregate caps apply: total non-economic damages against all physicians or other healthcare providers cannot exceed $250,000; total non-economic damages against all healthcare facilities cannot exceed $500,000 (or $250,000 if only one facility is involved). The aggregate cap against all defendants combined is therefore usually $500,000 ($250,000 physician aggregate plus $250,000 facility cap) or $750,000 if multiple separate facilities are involved.

Economic damages are not capped. The Section 74.301 cap applies to non-economic damages only (pain and suffering, mental anguish, loss of companionship and society, loss of consortium). Economic damages (lost earnings, lost services, medical expenses, funeral expenses, loss of inheritance) are not capped. For high-earning decedents with substantial economic-loss potential, the economic component can remain large despite the non-economic cap.

The cap applies to wrongful death and survival combined. Section 74.301 caps the total non-economic damages across the wrongful death claim and the survival action; the caps are aggregated, not doubled. Plaintiffs cannot recover $250,000 in wrongful death non-economic plus $250,000 in survival non-economic against the same physician.

The Medical Expert Report requirement. Section 74.351 requires the plaintiff to serve an expert report from a qualified healthcare provider within 120 days of the defendant filing the original answer. The report must address the standard of care, the breach, and the causal connection between the breach and the injury or death. Missing the report within 120 days results in dismissal with prejudice and an award of attorney’s fees to the defendant. The 120-day deadline is one of the most aggressive procedural requirements in American medical malpractice practice.

The qualified expert standard. The expert report must come from a person qualified under Section 74.401 (for physicians) or Section 74.402 (for non-physician healthcare providers). The expert must practice in the same or similar specialty and have substantial experience in the relevant area. Identifying the right qualified expert and obtaining a compliant report within 120 days requires immediate engagement of expert support.

Pre-suit notice. Section 74.051 requires written notice of the medical malpractice claim to each defendant healthcare provider at least 60 days before suit can be filed. The notice must include an authorization for release of medical records under Section 74.052. The notice tolls the statute of limitations for 75 days.

Statute of limitations. Section 74.251 sets a 2-year statute of limitations for medical malpractice, running from the breach or the end of a continuous course of treatment. A 10-year statute of repose under Section 74.251(b) bars cases more than 10 years after the breach no matter when the injury was discovered (with narrow exceptions for minors).

Practical impact. A medical malpractice wrongful death case with significant non-economic damages potential (a relatively young decedent with strong family ties) that might produce a $5 million verdict under Chapter 71 produces a non-economic recovery capped at about $250,000 to $750,000 under Chapter 74. The economic damages component remains intact. Total recovery in a Texas medmal wrongful death case is often dominated by the economic component (lost earnings, medical expenses, loss of inheritance) rather than the non-economic component.

6. The Section 71.021 Survival Action

The survival action under Section 71.021 runs in parallel with the wrongful death claim and recovers for the decedent’s own pre-death damages.

The statutory basis. Section 71.021 provides that a cause of action for personal injury to a deceased’s health, reputation, or person does not abate because of the death of the injured person. The cause of action survives to and in favor of the estate. The estate recovers for the decedent’s pre-death damages, distributed under the decedent’s will or under intestate succession.

Pre-death conscious pain and suffering. The most significant survival action category. Recovers for the decedent’s physical and mental suffering between the underlying injury and death. The standard requires evidence of conscious awareness of pain during the relevant period. Texas juries have awarded substantial conscious-pain-and-suffering damages in cases involving long dying or significant pre-death awareness.

Pre-impact terror. Available in Texas where evidence supports awareness of impending death. Most commonly recognized in aviation and vehicle collision cases.

Pre-death medical expenses and lost wages. Medical expenses incurred between injury and death and wages the decedent would have earned between injury and death are recoverable in the survival action.

Survival action and Chapter 74. For medical malpractice cases, the Chapter 74 cap applies to non-economic damages in both the survival action and the wrongful death claim, aggregated. The survival action in medmal cases is therefore subject to the same cap structure as the wrongful death claim.

Statute of limitations. The survival action follows the personal injury statute of limitations under Section 16.003 (2 years for negligence) or Section 74.251 (2 years for medical malpractice). Running from the date of the underlying injury, not the date of death. Discovery rule applies in limited circumstances.

Beneficiary distribution. Survival action recovery belongs to the estate and is distributed under the decedent’s will or under intestate succession. Subject to estate creditors and administration expenses.

7. Statutory Beneficiaries and Apportionment

Texas’s beneficiary hierarchy is meaningfully narrower than the hierarchies in most other states.

The statutory beneficiaries. Section 71.004 designates only three classes of statutory wrongful death beneficiaries: the surviving spouse, the children (including adopted children but not stepchildren), and the parents of the decedent. Siblings, grandparents, grandchildren, domestic partners, and other relatives are not statutory wrongful death beneficiaries under Texas law and cannot bring a wrongful death claim. This is one of the narrowest beneficiary hierarchies in the country.

Who can bring the claim. Section 71.004(b) provides that any one or more of the statutory beneficiaries may bring the wrongful death action for the benefit of all. If no statutory beneficiary brings the action within 3 calendar months after the death, the executor or administrator of the decedent’s estate may bring the action for the benefit of the statutory beneficiaries, unless requested not to.

Apportionment among beneficiaries. Section 71.010 requires the jury to apportion the damages “in such shares as the jury finds.” The apportionment reflects each beneficiary’s actual loss, not equal shares. A surviving spouse with minor children typically receives the largest apportionment for loss of companionship, mental anguish, and lost financial support; surviving parents of an adult decedent may receive smaller apportionments based on their dependence and relationship.

Stepchildren and adopted children. Adopted children are full statutory beneficiaries. Stepchildren are not, unless legally adopted by the decedent. This distinction can produce inequitable results in blended-family cases.

Common-law spouses. Texas recognizes common-law marriage under Family Code Section 2.401. A common-law spouse who can establish the elements of common-law marriage (agreement to be married, living together as spouses in Texas, and representation to others as married) qualifies as a surviving spouse under Section 71.004. Establishing common-law marriage after the death of the alleged spouse can be challenging but is recognized in Texas courts.

Personal representative qualification. The survival action must be brought by the personal representative (independent executor under Texas Probate Code or court-appointed administrator). The wrongful death action can be brought directly by the statutory beneficiaries without estate qualification, but practical case management usually requires estate qualification for evidentiary and procedural purposes.

Northern Virginia families. A Northern Virginia family with a Texas wrongful death case usually opens probate in Virginia (where the decedent was domiciled) and obtains ancillary letters in Texas if needed for the survival action. The wrongful death case itself can be brought by the statutory beneficiaries directly.

8. Statute of Limitations and the 120-Day Expert Report

The statute of limitations and (for medmal cases) the 120-day expert report requirement are the two most common procedural traps in Texas wrongful death cases.

The 2-year wrongful death SOL. Section 16.003(b) sets a 2-year statute of limitations for wrongful death actions, running from the date of death. The 2-year deadline is firm.

The medical malpractice SOL. Section 74.251 sets a 2-year statute of limitations for medical malpractice, running from the breach or the end of a continuous course of treatment. A 10-year statute of repose under Section 74.251(b) bars cases more than 10 years after the breach no matter when discovery happened (with narrow exceptions for minors). The pre-suit notice under Section 74.051 tolls the limitations period for 75 days.

The general survival action SOL. Section 16.003(a) sets a 2-year limitations period for personal injury, running from the date of the underlying injury. Discovery rule applies in limited circumstances.

The 120-day Medical Expert Report. Section 74.351 requires the plaintiff to serve an expert report from a qualified healthcare provider within 120 days of the defendant filing the original answer. The report must satisfy the standard of care, breach, and causation elements with specific factual detail. Missing the deadline results in dismissal with prejudice and mandatory attorney’s fees against the plaintiff. A 30-day extension is available with leave of court under Section 74.351(c), but otherwise the 120-day deadline is firm.

The 60-day pre-suit notice. Section 74.051 requires written notice to each defendant healthcare provider at least 60 days before suit. The notice must include a medical authorization under Section 74.052. The notice tolls the limitations period for 75 days from the date of notice.

Texas Tort Claims Act notice. Section 101.101 requires notice of claim within 6 months of the incident for claims against most governmental units. Some governmental units (including the City of Houston under its charter) have shorter notice periods. Missing proper notice is fatal to the case against the governmental unit.

Federal Tort Claims Act. FTCA administrative claim within 2 years for federal employee cases. Standard Form 95.

Practical takeaway. For medical malpractice cases, the 120-day expert report deadline starts running from the answer date, which can be only 60 to 90 days after filing. Plaintiffs effectively need a qualified expert engaged before filing or very shortly after. Northern Virginia families with Texas medical malpractice wrongful death cases should engage counsel immediately and identify expert candidates within the first weeks of the engagement.

9. Modified Comparative Fault and Exemplary Damages

Texas comparative fault and exemplary damages frameworks affect the recovery calculation in most wrongful death cases.

Modified comparative fault. Chapter 33 sets modified comparative fault with a 51-percent bar. Section 33.001 provides that a claimant may not recover damages if the claimant’s percentage of responsibility is greater than 50 percent. Recovery is reduced proportionally for responsibility of 50 percent or less under Section 33.012.

Comparison with Virginia. Virginia bars recovery for any plaintiff fault. Texas allows recovery up to 50 percent fault. A 40-percent-at-fault decedent recovers 60 percent of damages in Texas but recovers nothing in Virginia.

Joint and several liability under Section 33.013. Joint and several liability is kept only for defendants whose percentage of responsibility exceeds 50 percent or who are alleged to have engaged in specifically listed misconduct (Section 33.013(b)). For most defendants with fault percentages of 50 percent or less, several liability applies and each defendant pays only its proportional share.

Exemplary damages under Chapter 41. Section 41.003 requires clear and convincing evidence of fraud, malice, or gross negligence. Section 41.001(7) defines gross negligence as an act or omission that involves an extreme degree of risk considering the probability and magnitude of potential harm and the actor’s actual subjective awareness of the risk and conscious indifference to the rights, safety, or welfare of others.

The Chapter 41 cap. Section 41.008 caps exemplary damages at the greater of $200,000 or 2 times economic damages plus non-economic damages up to $750,000. The formula effectively caps exemplary damages at the smaller of (a) double the economic damages plus an additional capped amount, or (b) a baseline floor of $200,000. The cap does not apply to certain listed felony conduct under Section 41.008(c) (capital murder, sexual assault, certain DTPA claims, and others).

The jury unanimity requirement. Section 41.003(d) requires that exemplary damages be awarded by unanimous jury verdict. Failure of unanimity defeats the exemplary damages claim.

Bifurcated trial procedure. Section 41.009 allows defendants to request a bifurcated trial separating the liability and compensatory damages phase from the exemplary damages phase. Bifurcation is now standard in Texas exemplary damages cases.

Texas Tort Claims Act. Exemplary damages are not available against governmental units under the Texas Tort Claims Act.

10. How I Work Texas Wrongful Death Cases for Northern Virginia Families

When a Northern Virginia family calls me about a death in Texas, the engagement focuses on three things: identifying whether the case is Chapter 71 (general) or Chapter 74 (medmal), preserving the 120-day expert report option in medmal cases, and coordinating with Texas local counsel admitted to practice in the appropriate Texas court.

The Chapter 71 versus Chapter 74 analysis. The first analytical step is identifying whether the case falls under general wrongful death (Chapter 71, uncapped non-economic) or medical malpractice (Chapter 74, $250,000 per physician / $250,000 per facility cap structure). The classification can be straightforward (a motor vehicle crash on a Texas highway is clearly Chapter 71; a delayed cancer diagnosis at MD Anderson is clearly Chapter 74) or more complex (nursing home falls, dental injuries, emergency room treatment errors, and similar cases require careful classification analysis under the broad Chapter 74 definition of healthcare liability claims).

The immediate deadline check. The 2-year wrongful death statute of limitations under Section 16.003. The 2-year medical malpractice statute of limitations under Section 74.251 with the 10-year statute of repose. The 60-day pre-suit notice for medical malpractice cases. The 6-month Texas Tort Claims Act notice for governmental defendants. The Federal Tort Claims Act 2-year administrative deadline.

The 120-day expert report planning. For medical malpractice cases, the 120-day expert report deadline starts running from the defendant’s answer (typically 60 to 90 days after filing). Identifying and engaging a qualified expert under Section 74.401 or 74.402 should begin within the first weeks of the engagement, before filing if possible.

Personal representative qualification. For survival action purposes, qualify the personal representative through Virginia probate (decedent’s domicile) and obtain ancillary letters in Texas if needed. The wrongful death claim itself can be brought directly by the statutory beneficiaries.

Evidence preservation. Police reports. Medical records (with HIPAA-compliant authorizations). Vehicle accident reconstruction. Workplace OSHA records for industrial cases. Surveillance footage from hotels, businesses, and transit systems. Witness contact information.

Texas counsel coordination. I work with Texas local counsel admitted to practice in the appropriate Texas district court for filing and court appearances. The arrangement is standard for cross-state cases.

Damages workup. For Chapter 71 cases, the workup runs the full range: pecuniary loss, loss of companionship and society, mental anguish, loss of inheritance, exemplary damages where applicable. Economists, household services experts, and family witness testimony all factor in. For Chapter 74 cases, the workup focuses on economic damages (lost earnings, medical expenses, loss of inheritance) given the non-economic cap, with non-economic developed to the cap limits.

The settlement framework. Most Texas wrongful death cases resolve through settlement. Chapter 71 cases produce broader settlement ranges given the absence of caps. Chapter 74 cases produce narrower ranges given the cap structure, with the bulk of recovery typically coming from economic damages.

The litigation timeline. Most Texas wrongful death cases take 18 to 30 months from filing to resolution. Major-county Texas state district courts (Harris, Dallas, Tarrant, Travis, Bexar) handle high case volumes. Federal district courts in Texas run on tighter schedules.

Summary

Texas wrongful death law runs two distinct frameworks. General wrongful death under Chapter 71 of the Civil Practice and Remedies Code allows broad uncapped non-economic recovery: pecuniary loss, loss of companionship and society, mental anguish, loss of inheritance, and exemplary damages where the standard is met. Medical malpractice wrongful death under Chapter 74 (the 2003 reform act) caps non-economic damages at $250,000 against each physician and $250,000 against each facility with aggregate facility limits, producing much smaller medmal verdicts than the general framework allows. The split is the defining feature of Texas wrongful death analysis.

The survival action under Section 71.021 keeps the decedent’s pre-death claim for conscious pain and suffering, pre-impact terror, pre-death medical expenses, and pre-death lost wages alive. The Chapter 74 cap applies to non-economic damages in both the wrongful death and survival action for medical malpractice cases, aggregated. The statute of limitations is 2 years from the date of death under Section 16.003 for general wrongful death and Section 74.251 for medical malpractice (with a 10-year statute of repose). The 120-day Medical Expert Report deadline under Section 74.351 starts running from the defendant’s answer in medmal cases. The 60-day pre-suit notice under Section 74.051 is required before filing.

Texas has one of the narrowest beneficiary hierarchies in the country. Section 71.004 designates only the surviving spouse, children (including adopted children but not stepchildren), and parents as statutory beneficiaries. Siblings, grandparents, grandchildren, and domestic partners cannot bring a Texas wrongful death claim. Section 71.010 directs apportionment based on each beneficiary’s actual loss.

Modified comparative fault under Chapter 33 bars recovery if the decedent’s fault exceeds 50 percent (51-percent bar) and reduces recovery proportionally for fault of 50 percent or less. Joint and several liability is kept only for defendants with fault over 50 percent or for specifically listed misconduct. Exemplary damages under Chapter 41 require clear and convincing evidence of fraud, malice, or gross negligence and are capped under Section 41.008 at the greater of $200,000 or 2 times economic damages plus non-economic damages up to $750,000, with jury unanimity required.

Virginia courts apply Texas substantive wrongful death law to a case arising from a Texas death under the lex loci delicti rule of McMillan v. McMillan, 219 Va. 1127 (1979). Most Northern Virginia families with Texas wrongful death cases file in Texas state district court or federal district court for practical reasons. I coordinate with Texas local counsel for filing and court appearances while leading strategy and damages workup.

For the framework that runs through every state guide in this series, see my cornerstone guide for multi-state wrongful death.

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Anthony I. Shin, Esq.

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