On January 14, 2013, Irish nanny Aisling Brady McCarthy was babysitting a 1 year old girl, Rehma Sabir, she had watched for six months in Cambridge, a suburb of Boston. Something occurred and the baby suffered a catastrophic brain swelling and bleeding which ultimately ended her life.

Shortly thereafter, McCarthy was charged with the murder of the little girl. The theory was that McCarthy shook the baby which caused the brain injury. McCarthy spent two years in prison fearing for her life since “baby killers” were considered the lowest of the low. Over time the prisoners all believed she was innocent. Two attorneys took her case and were able to free her from her life sentence due to a lack of evidence that could prove beyond a reasonable doubt McCarthy was guilty.

Now five months removed from prosecutors dropping the murder charges and with McCarthy back in her home of Ireland, the family of the deceased girl has filed a wrongful death claim against McCarthy. The wrongful death claims states that McCarthy is responsible for the death of their daughter due to McCarthy’s “negligent, malicision, willful, wanton, reckless and/or grossly negligent acts.” According to the father, they will drop the claim if McCarthy signs an agreement stating she will not to profit from the incident. They said they will not even ask McCarthy to sign an admission of culpability.

Wrongful Death in Texas

This section is in regard to the Texas statute in the Civil Practices and Remedies Code, Title 4 (Liability in Tort), Chapter 71 (Wrongful Death; Survival; Injuries Occurring Out of State).

What qualifies as a wrongful death claim? Who is liable?

This section is in regard to the above named Texas statute under Subchapter A (Wrongful Death).

The first thing to know about wrongful death claims in Texas is that a claim may only be brought by someone if the individual who died would have been able to bring a claim for the injury that caused their death if the individual would not have died. A wrongful death claim may be brought by one or more of the surviving spouse, children, and parents of the deceased. Even if only one brings the action, all of the qualified plaintiffs may benefit.

It is important to understand is that Texas qualifies unborn children, from conception to the moment just before birth, as individuals with rights. The plaintiff is required to provide evidence that the mother was pregnant at the time of the unborn child’s death. Therefore, if an unborn child cannot be born alive because of the actions of another, a wrongful death claim may be pursued against the liable party. A liable party can be an individual person, a group of people, a person’s representative, or a company. If a liable party is an individual that dies before the completion of a wrongful death lawsuit, the executor or administrator of the liable party’s estate may be named the defendant. However, a liable cannot be:

·         The mother of an unborn child;

·         A doctor or other health care provider who performed a consented medical procedure and death was the intended result;

·         A party who lawfully gave a drug to another and death resulted from using that drug; or,

·         A doctor or other medical provider performed a lawful medical procedure and death resulted.

The most common reason for wrongful death cases is the wrongful action, neglect, carelessness, unskillfulness, or default of a liable party. A wrongful action is doing something the liable party should not have done such as intentionally pushing a ladder over while someone is on it. Neglect is not doing something the liable party should have done such as not putting warning notifications where a hazard exists. Carelessness occurs when the liable party is not being careful such as a medical provider not following the proper protocol when handling a sick patient. Unskillfulness of a liable party happens when the liable party is not qualified to do something such as someone getting shot at a gun safety class because a brand new, unsupervised instructor-in-training was leading the course. Default is the failure of the liable party to do something required by law such as a company not pulling children’s toys off of store shelves when the government recalls the products because the paint has too much lead.

What if the deceased died in another state or country?

This section is in regard to the above named Texas statute under Subchapter C (Act or Omission Out of State).

Even if the deceased died outside of Texas, it is still possible for Texas to be the venue of the lawsuit. If Texas is the venue, then Texas law must apply. The four requirements for this to occur are:

1.       A law in Texas, the other state, or the other country allow for the case to be held in Texas;

2.       The case began within the necessary time frame that Texas requires under its statute of limitations for that type of case;

3.       The case began within the necessary time frame the other state or country requires under its statute of limitations for that type of case; and,

4.       Only if another country is involved, that country has equal treaty rights with the United States on behalf of that country’s citizens.


What happens to lawsuits still pending that the deceased is a plaintiff?

This section is in regard to the above named Texas statute under Subchapter B (Survival).

If the deceased had lawsuits still in motion at the time of death, the lawsuits are still alive. Any award or compensation earned through the lawsuits would go to the heirs, legal representatives, and estate of the deceased. The cases will continue as if the deceased were still alive.

Legal Commentary

When unexpected deaths like that mentioned above occur, it is important that the victim’s family members meet with an attorney to weigh their options, and establish an effective plan of action for filing a wrongful death claim. Filing a wrongful death claim against the responsible party will protect the surviving family members from being burdened with expensive, unexpected medical bills, and final expenses. Using an attorney to negotiate with the insurance companies and handle all of the legal aspects of the accident gives the grieving family members more time to do just that – grieve, spend time together, and work towards finding closure after experiencing such a tragic loss. Losing a loved one is never easy to endure, but being distressed over medical and final expenses are burdens that an experienced wrongful death attorney can help mitigate for the victim’s family. If you have been directly affected by an incident that caused the wrongful death of a loved one like the story mentioned above, the successful wrongful death and personal injury attorneys at the Fears | Nachawati Law Firm can give you the legal guidance and representation needed to successfully pursue a wrongful death claim against the party held liable. For a free consultation, email us at mn@fnlawfirm.com or call our office at 1.866.705.7584.