Legal Question in Medical Malpractice in New Jersey

Call me to discuss your options.

267-210-8752

Medical negligence cases are complicated, those that result in wrongful death, even more so. It is almost impossible to give complete and reliable answers in this forum, feel free to call me 856-956-5650 to set up a free consultation either by phone, video conferencing, or in person at your house, for further information.

That said, both you and your brother have the right to file the lawsuit on behalf of your mother � only one of you are necessary, and then after that choice is made, paperwork is necessary from the county surrogate�s office. Your step father is also able to file the lawsuit, if that is the preference or choice, regardless of the will. Again, paperwork needs to be obtained from the county surrogate�s office.

The right to a lawsuit that your step-father has as a result of the wrongful death, and you and your brother�s right to a lawsuit that you have as a result of the wrongful death would be, and need to be, filed in the same complaint/lawsuit.

If there is a settlement, and money is available to be disbursed, then it gets disbursed in two ways.

In a lawsuit involving a wrongful death there are actually two claims � one is called a Survival Action � which is money for any pain and suffering your mom experienced before her death. In this case, depending on the amount of anesthesia used, your mom may have experienced almost nothing, and maybe nothing. Expert testimony would be needed to assess that issue. Even short pain and suffering, if significant, can result in a significant settlement. Conversely, short or almost non-existent pain and suffering, which could result in some settlement, might even be waived and not pursued by an attorney.

That said, assuming money is received for pain and suffering of your mom before her death � then this goes entirely to you and your brother under the terms of the will as Survival Act damages are considered part of the Estate � since they are your �mom�s pain and suffering�. This is not any sadness or pain that you feel from your mom�s passing. Your Step-father would get nothing under this part.

The second claim is called Wrongful Death � this is the damage that results to dependents � children of the deceased, or spouse of the deceased, from the passing of your mother. This is not an �emotional loss� claim � this is purely economic � what is the financial loss that you and your brother experienced as a result of the wrongful death of your mouth � and this financial loss includes a value for the loss of guidance, advice and companionship. Your step-father also has a right under this claim to get any money that represented the financial loss he experienced form the wrongful death of his wife � which again includes loss of advice, guidance, and companionship.

This money goes to the dependents � which could be you alone, it could be just you and your brother, it could be just you and your Step-father, it could be just your step-father, it could be all three of you � it depends on the level and amount of dependency that existed in the relationship between your mother and her children and her spouse. The amount could also vary among each dependent, and sometimes, there is actually a separate allocation hearing in front of a judge to distribute this money if everyone doesn�t agree.

Most of the time, everyone agrees to some split of the money � everyone getting the same amount is a common result.

As you can see this is a complicated and difficult assessment. In short, Survival Act damages go to you and your brother alone pursuant to the Will, and Wrongful Death Act damages go to the dependents, which can include your step-father, you and your brother, and what is in the Will is irrelevant.

I appreciate your inquiry and offer my condolences for your loss. As you have realized, you need the guidance of a lawyer who is familiar with such matters. My firm and I regularly handle such medical malpractice cases and I would be happy to help you with this claim. There are several ways you may be compensated for your loss but keep in mind that you may have only a limited time to file an action, and even less time if you intend to file against a public entity. So you need to act soon.

Call me for a FREE consultation so that I may be able to help you further. Please note that I only have the little information that you put into your question and my response is presented as a general response to that question. It is not intended as, nor should be construed as, legal advice or opinion.

732.370.3000