Legal Question in Medical Malpractice in United States

The children of a decedent who had a malpractice claim have no claims only the spouse has a claim.

you would need to check the wrongful death statute in each State, but in NJ, the answer would be yes, that all dependents need to be notified because under the NJ Wrongful Death Act, the claim is the dependents, and not the decedent. The decedent has a Survival Act claim that might survive his death, and for that claim there is no need to notify the children .

it depends on the jurisdiction and the cause of action. If it is alleged that the decedent died due to malpractice and it is a wrongful death action, then in D.C. and Va. the children are beneficiaries and are entitled to a portion of any settlement or judgment.

In NYS, children of a decedent must be notified if there has been a settlement on a malpractice claim because they may have the right to share in the settlement proceeds.

Sherri L. Plotkin

Rheingold Valet Rheingold McCartney & Giuffra LLP

113 East 37th Street

New York, NY 10016

I will only speak in reference to my understanding of Massachusetts law. In Massachusetts, wrongful death actions are brought by the representative of the decedent's estate. Where there is a will, this is the executor or executrix. Where there is no will, this is the administrator or administratrix. The children of a decedent normally have a right to a share of the proceeds of a wrongful death lawsuit, and their share is defined by statute. Mass. Gen. Law ch. 229, sec. 1. Before a representative of the estate is appointed, notice must normally be given to the next of kin. If there is a settlement or other recovery in a medical malpractice case, it is my opinion that in most instances the children would need to be notified because they would have right to share in the proceeds. They would be notified by receiving a payment. In general, I doubt the children have any right to decide how much a case settled for or to make other decisions about the case. But, the representative of the estate has a fiduciary duty to the children to act reasonably in pursuing or settling wrongful death claims on behalf of the children of the decedent. If the representative of the estate is not fulfilling their fiduciary responsibilities, the probate court can remove the representative and appoint a different one. This is normally done upon the request of unhappy beneficiaries. If the beneficiaries suffer harm because of a breach of duty by the fiduciary, they can sue the fiduciary for damages.

It looks like you're in Michigan. Please consult with a MI lawyer who handles these types of cases as the laws vary from one state to another.

NO, unless it is a wrongful death case.