Texas Wesleyan Law Review

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The Texas Supreme Court should take the position that an action for wrongful death is derived from the decedent's right to sue for any injury, and as such, the plaintiff, even though a minor, should inherit the statute of limitations from the decedent. In other words, children suing for the wrongful death of their parent due to medical malpractice should have two years from the date of the negligence in which to bring their claim. Part II of this Comment outlines a brief history of the ability of a minor to sue in the State of Texas. Next, this Comment discusses the derivative nature of the wrongful death claims and reviews Texas Supreme Court cases, which, because of the derivative nature of the claims, impose a strict two-year statute of limitations. Finally, this Comment addresses whether the minority tolling provision in the Medical Liability Act can be severed from its common law application so that the provision is constitutional as applied to minors in wrongful death actions. This Comment concludes by advocating that the legislature or the Texas Supreme Court should treat wrongful death actions like other derivative claims and impose the strict twoyear limitations period that is inherited from the decedent.



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