Who Can File A Medical Malpractice Lawsuit?

So you want to know who exactly can file a medical malpractice lawsuit? Look no further. There are guidelines that lay out the reasoning behind why a person can file a medical malpractice lawsuit and sue a doctor. A person must have clear ability to prove through their attorney that a doctor’s conduct was below the standard of care before a lawsuit is even filed. Usually an attorney will have a medical expert review medical records to determine if there is sufficient evidence to prove that malpractice occurred.

A person can only sue a doctor or other healthcare provider if there is “good ground to support” that the health provider committed malpractice—the healthcare provider’s conduct fell below the standard of care owed to the patient. For most attorneys, this means that they have had a medical expert review the records and conclude that he doctor’s conduct fell below the standard of care before the lawsuit is filed. If there is sufficient evidence of medical practice, then who can file suit against the medical provider?

First, there is the patient, the person damaged by the malpractice. An injured patient can always sue their medical provider if there is sufficient evidence of medical malpractice.

Second, there is the wrongful death personal representative. If the patient is deceased, then a wrongful death personal representative must be appointed to file suit on their behalf.  A wrongful death personal representative is any person or entity (a trust for example) appointed by the court to investigate and prosecute a wrongful death action on behalf of the deceased patient.  The personal representative is a nominal party that is appointed to act on behalf of the wrongful death beneficiaries.  The wrongful death personal representative’s duty is to bring the action on behalf of the patient’s wrongful death estate and, if there is a recovery, distribute that money to the wrongful death beneficiaries. The purpose of a single representative is to “centralize the claims and prevent multiple and possible contradictory lawsuits.”

A wrongful death representative can be any person or entity duly appointed by the court; the representative does not have to be a beneficiary to the lawsuit or a family member of the deceased. Importantly, the wrongful death personal representative is distinct from personal representative to administer the deceased estate pursuant to the probate code. A personal representative appointed under the probate code does not have the authority to file a wrongful death lawsuit unless that person has also been appointed as a wrongful death personal representative.

If you are wondering if you have a wrongful death claim or a medical malpractice claim reach out to our office at (505) 242-7200. and we can determine for you by doing a careful review of your case. Wrongful death and medical malpractice are two of the most heartbreaking experiences that can happen to you. We take very seriously what you have been going through and want the best outcome for you.