Commencing A Wrongful Death Lawsuit On Behalf Of A Deceased Loved One Caused By Medical Malpractice

When personal injury accidents cause the death of a person it is known as a wrongful death.  A medical malpractice case is a type of personal injury action.  Thus, if the medical malpractice of a healthcare provider is so below the standard of care and so bad that it results in the death of a victim, it is a wrongful death case.

Normally the victim of medical malpractice would prosecute the action.  However, in a wrongful death action, it is obvious that the victim cannot do that.  This creates an issue known as “standing,” meaning that the person bringing the lawsuit has not been aggrieved or have a controversy against the negligence doctors.

However, the New York Legislature has specifically enacted statutes around this issue to confer standing in several types of actions, including a wrongful death action caused by personal injuries and medical malpractice.  Thus, the Legislature has set up a list of people who can see on behalf of the victim who was wrongfully killed.

This list generally follows the list of intestate succession, or when someone dies without a will who gets the possessions of the deceased.  The first and most obvious person to be the representative of the deceased is the surviving spouse.  This is usually the person who represents the estate in a wrongful death action.  Next are children, following by parents and then siblings.  After that, great grandparents, aunts/uncles, or nephews could step in.  Of course, if the family is completely unable to act as an account representative, the family could elect to appoint an individual through the surrogates court or have a public administrator.

The representative stands in the shoes of the estate, meaning he or she will act as the deceased person.  Sometimes the representative can bring his or her own action or claims, such as loss of services or loss of companionship, as well as emotional pain and suffering caused by the wrongful death.

This area of New York medical malpractice law can be complicated and requires legal representative to help answer questions of the family.  But the bottom line is that all families who have lost a member of their household who was in the care and treatment of a healthcare provider should call a medical malpractice lawyer to review the case.