Hospital Death Lawyer Decatur, GA
Who Can Bring A Wrongful Death Action?
In Georgia, there are two separate, but related claims for wrongful death. The first claim often described as the survivors’ action, is brought by the family, for the full value of the life lost. The second claim is brought by the estate of the decedent, for medical and funeral expenses as well as the pain and suffering of the loved one just before death.
Unfortunately, about 9.5% of all deaths annually in the U.S. are caused by a medical error. If a loved one has been a victim of a wrongful death because of negligence from the hospital that was supposed to take care of them then you should consider scheduling a consultation with a hospital death lawyer Decatur, GA from The Krause Law Firm.
Who Was the Loved One? What Was Their Family Role?
Who should bring the claim is determined by the role of the loved one in their family, i.e., if they were unmarried, married, or had children. If the loved one was a child, the parents of that child have the right to bring a suit for wrongful death. The definition of a child is broad and expansive, and includes unborn babies, and extends to any adult who is unmarried or without any children.
The right to a claim for wrongful death of a child belongs to the parents equally, even if the parents are separated or were never married. Ideally, if the parents are not married, they can bring the lawsuit together, or one parent elects to bring the lawsuit. The proceeds are nonetheless split equally between the parents unless one of the parents asks for a special hearing on the allocation of the proceeds. At one point in time, a wrongful death action for an unborn child was limited. Cases could only be brought if the unborn child was “in the quick,” meaning that the mother can feel the baby moving.
However, since 2006, there has been a change in the statutory law issued by the Georgia General Assembly, in which all unborn children at any stage of development may have a wrongful death claim. Of course, in the event of an abortion, neither the mother nor the father has a claim against the hospital or the medical care provider.
If the loved one was married or had children, the parents no longer have a claim. Instead, the surviving spouse (a husband or a wife) has the right to bring a claim. Likewise, a claim belongs to the children. Usually, the spouse brings the claim on behalf of himself/herself as well as on behalf of the children. If the loved one was only survived by their children, then the children have the right to bring the claim.
If the children are minors, then there are special protections to protect and preserve the funds until the children reach adulthood. Many families believe that the funds should be used to take care of the children as they are growing up. While this is a permissible use, the probate court views the job of the surviving parent to provide most of the day-to-day care of the child.
If one of the parents survives, then the parent can bring the claim on behalf of the children, and the probate court will appoint a guardian to ensure the money is used wisely. Otherwise, the lawsuit must be brought under the name of a conservator. The conservator is appointed by the probate court to protect the funds of the minor children until they reach adulthood, typically at age eighteen.
Strangely, a decedent’s siblings are not authorized to bring suit. The brother and sisters must file the claim by way of the estate. The same applies if the family members are nieces, cousins, and the like. These are the unique situations whereby the estate may recover both the survivors’ and estate claims.
If the person bringing the lawsuit either does not have the authority or does not file any claims on behalf of the estate, the defendant may bring a motion to join all necessary parties. In essence, the defendant can force all of the parties to join as plaintiffs.
To clear up any of your concerns about what your legal options might be, you should reach out to a hospital death lawyer Decatur, GA to bring some clarity to your situation and what you might be entitled to.
The Estate of the Decedent
An estate is a legal entity, similar to a company that owns all of the assets and liabilities of the corporation. The estate of the decedent is run by an executor (if there is a will), or an administrator (if there is no will).
In wrongful death actions, the estate has an obligation to pay all of the outstanding medical bills of the decedent. At the same time, the estate has a claim for the pain and suffering experienced by the decedent before his death. If there is extra money remaining, after satisfaction of the debts, then the remainder goes to the heirs, as outlined above.
| Who | What Can Be Recovered |
| The family members/survivors | “The full value of the loved one’s life,” i.e., the economic value of life and non-economic value of enjoying life. |
| The estate | Medical expenses, funeral expenses, and pre-death pain and suffering. |
Some Additional Problems, Issues, and Complexities
When there is a claim for the wrongful death of a child, the rights to the claim belong equally to both parents. Ideally, in this situation, the parents bring the lawsuit together, or one parent brings the lawsuit, and the proceeds are split equally between the parents once the lawsuit is concluded. If the parents cannot agree, each parent can bring a suit independently, and in such a situation, the defendant(s) can merge the two lawsuits into one. Sometimes, one parent will elect not to file suit, but that parent does not waive the right to recover. Worse, sometimes one parent will blame the other parent for the death of the child. The best approach, of course, is for the parents to work out these issues before filing any suit.
When there is a claim for the wrongful death of a parent, the surviving spouse has the right to file suit and to resolve that suit without the consent of the children. This is true regardless of whether the surviving spouse is the parent of the children or if the children are adults. This sometimes creates the “evil step-parent” problem. At the same time, the surviving spouse has a fiduciary duty to the children and must ensure that funds are distributed according to law.
Recovery in such a situation is generally divided equally between the surviving spouse and the children. For example, if there were one surviving child and the surviving spouse, each would get one-half. However, if there were six children and the surviving spouse, then the surviving spouse receives no less than one-third of all recovery, with the remaining two-thirds to be distributed equally among the children.
Occasionally, there is a dispute about the identity of the children and the probate court can investigate those issues. Sometimes, the probate court will require a detailed investigation regarding who the heirs are. The investigation includes the obligation to pay for a legal advertisement in the local newspapers in an attempt to protect and notify all potential heirs.
Similar complications occur when there is no longer a surviving spouse, but multiple adult children. In that situation, there is often a “race to the courthouse” in which the adult children compete in being appointed as a temporary administrator of the estate, which also includes filing and obtaining service over the wrongdoers. In such a situation, the defendant may join the actions so that they only have to deal with one single action.
Unlike the statute of limitations, parties to the lawsuit can be changed and substituted, and the lawsuit does not automatically fail. At the same time, the case proceeds with fewer difficulties by being brought by the correct parties.
There is a lot to consider when you are dealing with a wrongful death claim, especially one that involves possible negligence from the hospital and medical professionals who took care of your loved one. It is important to seek out a professional like a hospital death lawyer Decatur, GA to answer any of your questions or concerns. A lawyer from The Krause Law Firm could be the help you need during this complex time.