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Who has the right to sue in a medical malpractice case?


In most cases, the injured person is the proper party to bring suit for the damages caused by the wrongful conduct.  However, there are certain situations where other persons may be substituted or included as parties in a case. The law of the state you are in will dictate who can file and what they can recover.

If the injured party has signed a power of attorney for someone else to act on his behalf, then the party who has had the power of attorney may bring suit on behalf of the injured party.  This situation may arise where the injured party no longer has the mental or physical capacity to bring suit on his own.  It also occurs commonly in nursing home cases where a family member may hold the power of attorney to act on behalf of an elderly loved one.

Sometimes, a guardianship is taken out over an injured person due to incapacity.  In those cases, the person who has the guardianship is the proper party.  However, powers of attorney and guardianships generally expire upon the death of the injured party.

In most states, when an injured party has died (either due to the injuries the subject of the lawsuit or due to other causes), then the person authorized to act on behalf of the estate can bring suit to recover damages for which the injured party could have sued if still alive.  In some states, however, when a person dies due to causes unrelated to the case, that person’s claim for personal injuries is terminated.

When allowed by state law, the claim can be brought by an executor named under a will and appointed by a court.  If the deceased did not leave a will, a person (usually a close family relation) can petition a court to be named an administrator of the estate.   However, you do not always have to open an estate to pursue a lawsuit on behalf of a deceased person.  Some states allow for alternate procedures.  In Texas, for example, if there are no debts owed by the deceased and no other reason exists for opening an administration, the heirs of the deceased may bring a lawsuit on behalf of the deceased.

Sometimes, persons close to an injured party may also have a claim for their own damages and may join in the lawsuit asking to be compensated for their own injuries.  This is in addition to the injured party’s claims.

When the injuries are severe enough, a spouse may bring claims for loss of spousal consortium (loss of affection, solace, comfort, companionship, society, assistance, sexual relations, emotional support, love and felicity) and for loss of household services (domestic duties the spouse performed prior to the injury but is no longer able to perform).  Likewise, a minor child of an injured party can often claim a loss of parental consortium (love, affection, protection, emotional support, services, companionship, care and society) that he or she would have received if the injury had not occurred, but unlike the spousal claim, the injury to the parent usually must be serious, permanent, and disabling before a child may recover.

In wrongful death cases where the wrongful acts the subject of the lawsuit caused the death of the injured party, spouses, children and parents usually claim damages for their own loss.  A spouse or child may claim damages for pecuniary losses (financial losses) and loss of inheritance, as well as loss of companionship and mental anguish, when supported by the evidence.  A parent can claim certain pecuniary losses (much more rare) and loss of companionship and mental anguish.  In some states, a litigant must choose between the options and cannot file for all the damages allowed in other jurisdictions.

The facts of each case and the law where the claim is brought will determine who is eligible to bring a legal claim for damages.  Therefore, it is important to have the facts of your case evaluated by an attorney familiar with this area of the law.

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About the author

Rosen & Spears is a plaintiff law firm which seeks to protect the rights of healthcare consumers and their loved ones through medical malpractice, nursing home neglect, financial abuse of seniors, and other types of claims. For more information, please contact us