Who can Sue in a Medical Malpractice Wrongful Death?

John Fisher
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Stopping Medical Injustice

Most people understand that if they are wrongfully harmed by a doctor, or any other medical professional, then he or she can commence a civil suit founded in medical malpractice against that doctor.  Not commonly known is that the family of the victim can sue depending on the victim’s age, infirmity, and even when the patient has died.

Experienced medical malpractice attorneys are fully aware of Sections 5-4.1 and 11-3 of the New York Estates, Powers, and Trusts Law. 

Section 5-4.1 gives a decedent’s family the right to commence a wrongful death action against the negligent doctor.  Any distributee who suffered damages because of the doctor’s negligence can sue the doctor as long as the decedent would not have died had the doctor not been negligent. 

The goal of any suit founded in wrongful death is for the family to be compensated for their losses related to the death.  Note that any jury award that is received does not pass through the decedent’s estate; the award goes directly to the distributees. 

Lost financial support, diminution of an inheritance, medical expenses, and funeral costs are what the injured family members seek to receive as compensation.  So long as the family’s losses (aka damages) are ascertainable and concrete, the damages can be claimed.  The jury will review the facts and determine damages, which will include looking into the decedent’s income while living, his or her age at the time of death, career achievement, potential for further achievement, overall health, and earnings capacity are the factors that a jury will consider. 

In addition to a wrongful death action, the decedent’s estate can seek compensation from a negligent doctor by way of a survival action.  While the wrongful death action belongs to the distributees, the survival action is a suit that the decedent himself of herself could have brought had he or she not died.  The personal representative, as named by the court, is the person that will commence the civil action. 

The personal representative will look to receive damages related to the decedent’s conscious pain and suffering prior to passing, for example.  Obviously, greater and longer amounts of suffering would generate a larger award.  Whether or not the decedent knew that he or she was going to die also impacts the jury’s award.  And any award received is included in the value of the decedent’s estate that will be dispersed by will or intestacy. 

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at [email protected]  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com

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