Who Can Represent A Minor In A Medical Malpractice Lawsuit?

Medical malpractice cases can result in serious personal injuries or even the death of a minor.  Birth injuries commonly do that, including wrongful death, cerebral palsy, brachial palsy, facial paralysis, and other injuries.  While the time to bring a medical malpractice lawsuit is only two and a half years from the date of the alleged act or omission constituting medical malpractice, there is a toll or extension for minors which requires the action to be commenced within 10 years or by the time the minor turns 18 plus the two and a half years, whichever is less.

But the biggest question is, who can commence a lawsuit for a minor if the minor cannot?

Generally it will be either one of the parents, rarely both but it can happen, that commence an action on behalf of the minor.  The parent simply hops into the shoes of the minor and asserts the claims of the minor as if the parent was actually the minor.

But that is simple.  What about in more complicated cases?

If there are no parents, or no parents willing to commence an action on behalf of the child, a guardian of the child can commence the action.  This must be a person who either has formal rights or has clearly adopted a guardianship role of the child.  There is more to it, but that is the general premise a person should know.

If there are no parents and no guardians, the court can appoint a guardian ad litem to represent the minor.  This person acts in the best interests of the child for this litigation only.  The person could be a family member like an older sibling, grandparent, aunt, uncle, or other individual who asks the court to be the representative of the child.  This person could also be an agency appointed by the court for the minor, such as child protective services or the public administrator.

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 jfisher@fishermalpracticelaw.com.  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.