Can parents file medical malpractice lawsuit for the wrongful death of daughter, if decedent's husband refuses to file the suit?
My 36 year old sister passed away during surgery in a hospital. My parents and me believe her untimely death is because of Hospital's negligence or incompetency. The decedent's husband who administers the estate doesnot want to file the medical malpractice suit. My deceased sister and her husband doesnot have any children.
Can my parents file medical malpractice suit against the hospital by themselves, if decedent's husband is reluctant to file the case?
5 attorney answers
If you search for the wrongful death statute in your state on google, you will see who can file a wrongful death lawsuit.
Click on name or picture to see profile page.
This is a state-specific issue, so you will need to consult with a local attorney. You can search the attorney profiles here on Avvo for an attorney in your area. Contact two or three to compare advice. Good luck!
IMPORTANT LEGAL NOTICE: Ms. Brownâ€™s response to the question above is not legal advice and it does not create an attorney-client relationship. All of Ms. Brownâ€™s responses to questions posted on AVVO are intended as general information based upon the facts stated in the question, and are provided for educational purposes of the public, not any specific individual. If you would like to obtain specific legal advice about this issue, please contact an attorney in your state. Ms. Brown is licensed to practice law in New York. If you would like to contact her directly for a legal consultation, you may do so by calling 718-878-6886 during regular business hours, or anytime by email at: [email protected]
I am sorry for your loss. Let me give more than the shorthand version of the answer. Whether there was a will is important. Absent a will which can name anybody as a legal representive the spouse almost always has first priority to get letters and also will be entitled to a substantial part of the proceeds of the case. Next come children, then parents, then siblings under most states' laws. How the case proceeds are divided up depends on state law and the specific facts of the case, and in part the will if there was one. Generally the legal representative of the estate gets to decide whether to bring a wrongful death case. If there was no will naming somebody other than the spouse as executor, the spouse is first in line for this role. Other relatives may ask to be appointed if they have a legal interest in the estate. The death case is a part of the estate. If the legal representative is unwilling to sue, other interested parties may ask the court for limited letters of representation (the exact title varies from state to state) for the purpose of filing such a case. The priorities for being named legal representative also depend on state law. This seems complicated, and it is, which is why you need a lawyer experienced in medical malpractice and in wrongful death cases.
First, there is a three year staute of limitations from the date of her death to file a claim in Maryland. If this death is recent, he may need time before he will be willing to think about having this potential claim
In answer to your question, before any claim can be filed, the medical records need to be reviewed by an attorney or lawfirm that is experienced in medical negligence claims in Maryland. If you can get your sister's husband to give you authorization to obtain the medical records, then take the records to such an attorney or firm and they will be able to investigate and, then, answer if there was negligence.
If there was negligence, then you may have to either convince her husband to file the claim as the personal representative of the estate, or ask that he assign you or your parents as co-representatives. Either way hter would be at least two claims. A survival action, which is an action for her pain and suffering and on behalf of her estate for the loss of her income in the household and the other services that she provided which had monetary value. There would also be a wrongful death claim for the non-economic losses, the "pain and suffering", her parents and husband suffered as a result of her untimely death.
Attorneys in Maryland generally do these cases on a contingency basis. That is it costs the family little to nothing to investigate and, if it is litigated, the attorney and his or her firm collect a percentage of the case only if they are successful.
I am sorry for your loss and wish you good luck.