Medical professionals who harm patients due to negligence may be liable for medical malpractice. But what happens when your loved one dies? Is it still a medical malpractice claim, or is it a wrongful death claim?
No matter what the original cause was – a surgical error, a car crash, a fall down a broken set of steps – any time a person dies because of negligence, the claim changes. Instead of an injury or product liability claim, now it is a wrongful death claim. The family of the victim can also file a survival action along with the wrongful death claim.
Filing a wrongful death lawsuit
In a wrongful death lawsuit, the representative of the victim’s Estate – often the spouse, or maybe an adult child or sibling – files a claim on behalf of that Estate. In other words, if the victim could have filed a medical malpractice claim had he or she lived, then the estate can claim the same damages after the victim dies. In a survival action, the survivors seek compensation for their own damages and losses.
Between the two claims, families can seek compensation for:
- Medical expenses
- Funeral and burial costs
- Loss of income
- Lost wages
- Loss of companionship
- Pain and suffering (of the family, and of the deceased, if applicable)
Liability for the wrongful death
The loved ones of someone who has died in a hospital while receiving medical treatment may be able to sue for wrongful death if the doctor, nurse, or other medical professional was negligent. Hospitals may bear liability if the negligence was committed by one or more of their employees. However, hospitals are not usually responsible for medical malpractice committed by doctors.
Hospitals are liable for the negligence of its own staff
If the death of the patient occurs in the hospital, and that death is proven wrongful, the facility is liable if the individual responsible is a hospital employee. These employees typically include technicians, nurses, and other support staff.
If the individual responsible is a doctor, a hospital may only bear liability if the doctor is concluded to be an employee of the hospital.
If the medical professional at fault for the medical mistake causing the death of the patient was under the supervision of a physician, the family of the patient may sue the doctor, but not the hospital. In order to be deemed under the supervision of the doctor, the doctor must have been in attendance and had the ability to prevent the negligence or mistake.
When are hospitals responsible for malpractice of non-employee doctors?
In some situations, hospitals may be held responsible for wrongful deaths caused by doctors who are independent contractors. These situations include when the hospital has an incompetent doctor on staff or the hospital knows that the doctor has been deemed incompetent or unsafe. Another situation is when the doctor appears to be an employee of the hospital and the hospital has not made it clear to the patient that the doctor is an independent contractor.