Do you have to be the executor of a will to sue a doctor for malpractice?

Asked almost 2 years ago - Richmond, VA

My grandfather had severe dementia and his son (my uncle) took it upon himself to have the will changed so that everything went to the uncle's son. My mom is wanting to sue the doctor for malpractice (the lawyer said that it's a very strong case, very obvious malpractice!) but the lawyer said that she had to have my uncle sign the paperwork to have the medical records released. He won't do this because we think he told the nurses not to give him proper medicine (he died of double pneumonia and was given nothing) and he doesn't want us to find out. Is there any way to bypass the uncle and still be able to sue for malpractice? The will was changed when my grandfather was not in sound mind, due to his severe dementia, and my mom will probably contest the will anyway.

Attorney answers (3)

  1. Ruth Elaine McMahon

    Contributor Level 18

    4

    Lawyers agree

    Answered . Only the executor or personal representative of an estate has authority to bring a malpractice action against a physician. In the past I have repesented major medical facilities. In my experience, it is doubtful that there would be anything in the records re instructions from a family member not to give certain medications. While there may be"malpractice," it will be difficult to prove.

    It appears that your mother's best action will be a will contest - but that is also difficult to prove. You may need the testimony of your grandfather's physician as to his mental condition - is this the same physician you want to sue? Just becauses a person has dementia, this does not mean that he or she does not have lucid moments when he or she could sign a will. But if undue influence is a factor, he or she may not be understanding what the results will be if the will is signed. I suggest that you contact a local attorney that specializes in essate administration / estate litigation to go over your concerns.

  2. Sean Patrick Lewis

    Contributor Level 17

    3

    Lawyers agree

    Answered . You/your mom seem to have an attorney already who believes in the case. My recommendation is that your mom ask him if he can get a copy of the records through discovery, assuming she asks him to file a lawsuit. As you suggest, there may be other issues to litigate first, in order to get jurisdiction to file....The first issue might be coercion with respect to the will. If you succeed there, you might have standing to sue for malpractice, as a beneficiary. VA laws might give you standing sooner, as a potential beneficiary. Perhaps a VA attorney will be along soon to comment.

    The above is not intended to be legal advice, but may be used for general information. Please contact an attorney... more
  3. James P. Frederick

    Contributor Level 20

    1

    Lawyer agrees

    Answered . I agree with my colleagues, and particularly, Attorney McMahon. Only an executor can bring a malpractice claim. It would probably be a wrongful death claim, in your case. If you believe that there is a valid claim and your uncle will not pursue it, your mother can open an estate and try to do so, herself. In most states, she would not have priority to open the estate, because she is not named as executor. But if the named executor does not act, someone else can step in.

    Even though the Will leaves everything to the Uncle, it may still be possible for a court to award wrongful death proceeds to other heirs who have a loss. This is in the judge's discretion. So I am not sure a Will contest is needed.

    What IS needed, clearly, is a VERY skilled probate litigation attorney to review all of the facts and evidence to determine whether it makes sense to pursue a claim. There will be administrative expenses in going after this. If the malpractice is not very clear, it may not make sense to even open an estate. Unfortunately, if you do not open an estate, you cannot get the medical records which are likely needed, in order to investigate further.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ******... more

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