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In California if a victim of medical malpractice receives a settlement and later dies can family also file wrongful death claim?

Los Angeles, CA |

I have a friend who was misdiagnosed and as a result is in excruciating pain and may possibly die from the complications associated with the mistake of a doctor. He was able to obtain a settlement for a malpractice claim with the doctor's insurance company. My question is, if the patient dies a few years down the road, can the patient's family bring the responsible doctor back to court and sue for wrongful death?

Attorney Answers 5


  1. If you're suing for the same injury that was settled out the first time, then no.


  2. As far as I know, the medmal victim cannot destroy the rights of wrongful death claimants. Proper wrongful death claimants are defined in California Code of Civil Procedure, Section 377.60.

    Earley v. Pacific Electric Ry. Co. (1917) 176 Cal. 79, 80-82.
    - "the husband's execution prior to his death of a release for damages from the injury which finally resulted fatally will not bar the widow's right of action"
    - "Our statute creates a new right of action with a different measure of damage from that which accrued to the injured person as a result of the defendant's wrongdoing. The right of action is to the heirs or representatives of the deceased and the elements of damage (without here attempting to specify them all) include in the case of the widow an admeasurement of the financial loss occasioned to her by the death of her husband through the deprivation of his society, comfort, and protection."

    Best of luck to you!

    This information is not legal advice, does not create an attorney-client relationship, and is intended for general informational purposes only. Said information is given in the context of California law.


  3. Chances are that the settlement included a written settlement agreement that probably included a waiver of any future claims for wrongful death. His family should ask the attorney who represented him in the settlement negotiations.

    For more information or more personalized attention, please contact my office at (310) 410-9902 or visit my firm's website at www.waxmanlawgroup.com


  4. Duplicate post


  5. I do not know if the law of California would permit a "second" claim if your friend brought a claim during his lifetime. I would think this is unlikely but I do not know. However if your friend "settled" his claim, he would have signed a release. I would expect any release would say that in exchange for the money, no further claims can be brought by anyone else, ever.

    If you feel this is the "best" answer or is "helpful," please indicate. Since I am limited to the information you provide, I cannot guarantee the accuracy of the answer. You should seek the advise of an attorney who can explore all aspects of your question. This communication does not form an attorney client relationship.

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