Consider a situation in which a loved one of yours is experiencing unusual stomach-related symptoms involving pain, indigestion and occasional vomiting. Doctors perform tests that are inconclusive; they tell your relative that he may be suffering from from a food allergy, or stress, or maybe even an ulcer. Only later on, when it is too late, does the real cause turn out to be stomach cancer that leads to the death of that person.
You may think to yourself, "Does the delay in properly diagnosing the real medical issue lend itself to a cause of action?" After all, in medical malpractice actions delayed diagnosis is a recognized cause of action in many jurisdictions; would not the diagnosis failure leading to death also qualify for a wrongful death claim, based on the concept that the wrong interpretations led to a "lost chance" of survival that might have been possible with a correct diagnosis?
Although some states do recognize this "lost chance" theory as a basis for a wrongful death or survival action, Texas does not. The Texas Supreme Court has expressly rejected lost chance as a legal claim, stating that "... the [Wrongful Death] Act authorizes recovery solely for injuries that cause death, not injuries that cause the loss of a less-than-even chance of avoiding death."
Aside from finding that the Texas Wrongful Death Act does not expressly or indirectly authorize a lost chance cause of action, the court also reasoned that if this doctrine were to be applied to wrongful death claims it might also be expanded to cover other situations as well, including business cases involving diminished or lost profits, and decided to avoid that possibility by precluding it in wrongful death and survival actions.
One of the roles of effective legal counsel in a personal injury or wrongful death action is to zealously represent the client's interests, and this can often involve novel and creative interpretations of law. But it is also essential that plaintiff's attorneys be aware of the practical limitations that the Texas legislature and courts have placed on some of these innovative approaches, and this requires attorneys to constantly stay abreast of court decisions and other sources of information to be aware of whether such tactics have already been tried and what the result was, so that what works can be emulated and what does not work can be avoided in advance.