Legal Question in Civil Litigation in California

Answer to questons asked by Attorney Anthony Roach of Tarzana, CA.

My original questions: My sister filed a suit against a doctor and hospital for performing an unnecessary heart surgery. With the suit, a Declaration As To Heirs And Successor In Interest, in which I and my other siblings were named. The case was settled out of court and the settlement agreement was not filed with the court. I have been advised that the settlement was for $500,000 ($100,000) for each of us, however, my sister never informed us of the suit, and she did not give us any of the money. I have asked the attorney for a copy of the settlement, but they would not provide it. Is there a way I can get a copy of that settlement? Since our names are listed in the Declaration, are we entitled to a portion of the settlement?

In response, I was asked:

Question: Was this a wrongful death case, and did my sister survive.

Answer: This was not a wrongful death case. It was filed several years after the surgery on my mother who survived and died 6years later (not of heart problems).

2nd question asked of me: Was I a party to the action.

Answer: I was only as an heirs. I did not know about the suit until I was told by another person that there was an amount awarded that he was certain we (the rest of the siblings) were entitled to a part of the money.

Question 3 asked: Were you a party to the settlement.

Answer: Again, only by way of being an heir.

Asked on 7/30/12, 8:48 pm

2 Answers from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman

If your mother was still alive when the lawsuit was filed, then I'm not sure how your sister had standing to sue. Was she your mother's conservator? Had your mother assigned her claim against the doctor and hospital to your sister?

It also isn't clear to me why you believe you were to get a share of the settlement proceeds. Who "advised" you that this was the case? Since you were not a party to the lawsuit and did not participate in the settlement, you ordinarily would not have shared in the proceeds.

That is especially true if your mother was still alive at the time; the proceeds should have gone to her. If she had died by the time the case settled, then the proceeds should have gone to her estate and been distributed in accordance with her will, if she had one. If she had no will, then they should have been distributed according to the rules of intestate succession.

Your best bet may be to contact the executor of your mother's estate. He may have the records you seek, or may at least have information to share with you.

Good luck.

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Answered on 7/31/12, 1:16 pm
Anthony Roach Law Office of Anthony A. Roach

Mr. Hoffman asks some more good questions. I feel that someone has told you a line of bull, but cannot be sure.

If your mother filed the suit, it was definitely a wrongful death action. If she died while the action was pending as a result of other causes, the action for medical malpractice would have survived. To continue the action, either an estate representative is substituted into the case, or the heirs directly. In the latter case, you would have been a party to the action. In the former, any settlement would become property of the estate and be distributed through probate.

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Answered on 7/31/12, 4:17 pm

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