Filing a Medical Malpractice Claim on Someone Else’s Behalf
Can a Family Member Sue for Medical Negligence in NJ?
All told, medical errors that injure others can end in litigation. In medical malpractice lawsuits, a person called the plaintiff sues the party or parties responsible for the plaintiff’s injury. Typically, the injured patient sues the doctor, nurse, hospital, or other staff, organizations, and entities responsible for the damage. By law, only interested parties with standing can sue another for their conduct. Standing means they have the right to ask for compensation for an injury that someone else caused. In other words, the plaintiff has standing because they suffered an injury at the hands of someone else. An exception to this authority to sue, or standing, is if the injured person cannot sue on their own behalf.
The plaintiff must be a parent or guardian when filing a medical malpractice claim on behalf of a child. In other cases, the person suing on someone else’s behalf may be a spouse or another family member. In still other situations, the individual pursuing the claim must have a power of attorney to file suit on behalf of the injured party or be the executor or administrator of the injured person’s estate. For instance, when a parent or guardian files suit for their child’s injuries, they act as the adult capable of entering into contracts and filing lawsuits, as well as accepting settlement amounts and making other decisions about the legal proceedings. In virtually all of these cases, an attorney is necessary. And not just any attorney. In order to most effectively handle a medical negligence claim, you want an attorney who exclusively handles medical malpractice actions because they know how to prepare, file, and successfully execute every stage of the process for a lawsuit.
Parents Suing on Behalf of their Children
Unfortunately, accidents happen, people get hurt, and everyone suffers. And when the accident happens to your child, the suffering is immeasurable. Yet, there are excusable errors and then there are inexcusable ones, like those committed by professionals held to higher standards than the average person. For example, a doctor or nurse has training, experience, and education that should inform their practice of medicine. When they make mistakes that professionals in their field would not make under the same circumstances, they risk becoming named as a defendant in a medical malpractice lawsuit. If they harm a child through inexcusable error, an entire family suffers. In these cases, the victim’s parents have the right to file suit for their child’s injuries. For example, an infant harmed at birth by an obstetrician’s avoidable error cannot sue for lack of capacity. Quite obviously, an infant cannot understand the sequence of events, make decisions, and sue on their own. Thus, a parent or guardian may sue on behalf of their child.
Children Suing on Behalf of Parents with Diminished Capacity
Likewise, a child may sue on behalf of a parent who lacks capacity, perhaps due to illness or a medical condition such as dementia. The illness or condition must be such that the adult does not have the mental or physical capacity to file and prosecute a lawsuit on their own behalf.
Spouses Suing on Behalf of their Deceased Spouse
A spouse may also be able to file a lawsuit on behalf of the other spouse. For instance, a plaintiff files a wrongful death action for compensation to compensate for losses due to the death of their spouse. They can also sue for their spouse’s pain, suffering, and losses due to the given negligent actions.
Power of Attorney
Litigating for an adult, the person suing for the injured party must have a power of attorney (POA) that gives the person the authority to act on the victim’s behalf. The POA specifies what the designated person can do, such as make legal decisions like filing a lawsuit. For example, one spouse may grant a POA to the other spouse if the person giving authority to their spouse becomes incapacitated and cannot make decisions on their own behalf. Likewise, a child may have a POA to make decisions for a parent if the POA specifies that the named child can perform specific actions, like pursuing litigation. Similarly, an executor or administrator of a will may make legal decisions, such as suing on behalf of the estate. The will or trust empowers a designated person to perform specific actions for the estate.
If a Family Member Chooses to Sue for Medical Negligence, How much Time do they Have?
In malpractice actions, a child’s lawsuit must be filed within two years of reaching the age of majority, unless their injury occurred at birth. In that case, the statute of limitations runs until they reach 13. As such, if a doctor failed to monitor a baby during prolonged labor, which resulted in the baby being born with brain damage, the parent or guardian has until the child turns 13 to sue. And when a hospital delayed treatment of a teenage victim of a car accident, resulting in paralysis and permanent inability to walk, the hospital may expect a lawsuit within two years before the teen’s 20th birthday. If the victim is an adult, however, the statute of limitations for filing a medical malpractice action is two years from the date of the injury or reasonable knowledge that the injury occurred.
How do Loved Ones get Injured by Medical Mistakes?
Typical medical errors leading to medical malpractice claims include birth-related errors resulting in brain damage, cerebral palsy, or Erb’s palsy. Such injuries may occur from errors in prenatal care, inadequate fetal monitoring, failure to test for dangerous conditions, or labor and delivery mistakes. And failing to test and discover genetic disorders may lead to a wrongful birth lawsuit. Nevertheless, other medical professionals make mistakes too. Doctors injure patients when they delay diagnosis, misdiagnose, inappropriately provide treatment, or make anesthesia mistakes.
Understaffed hospitals may also cause injury when hospital administrators leave emergency rooms with inadequate and untimely care or unhygienic conditions. Radiologists and lab technicians make mistakes, too, as do pharmacists when they prescribe an improper dosage or medication. Sometimes, negligent surgeons operate on the wrong body party or injure nearby organs, vessels, or tissue. Additionally, medical devices need to be serviced and updated, or they too can hurt patients. Finally, administrators who do not keep careful records maintenance and thorough patient histories can cause injury also.
Lack of informed consent forms the basis of many malpractice suits. Not informing the patient about the procedure to be performed, the potential outcomes and risks, alternatives, and costs may be deemed negligent. In other words, it is not informed consent, and a doctor may be liable to the patient for not obtaining proper authorization to perform a medical procedure. Proper permission includes not only information, but free will. A patient must understand and be free to refuse consent after weighing the information that the medical person divulges, unless of course, it is an emergency and thus there is no time to obtain consent.
Perhaps a nurse or physician assistant in a hospital, hospice care setting, or nursing home caused your child, parent, or spouse injury. They may have failed to follow doctor’s orders or properly monitor your loved one the way a nurse should in the circumstances. For example, if a nurse in a nursing home leaves an immobile patient with vertigo alone on a bed and the patient falls and gets hurt, they are likely considered negligent. Or a doctor, pharmacist, lab technician, dentist, chiropractor, psychiatrist, or physical therapist injures your loved one by failing to perform their professional duties up to the standards expected of them by law. If that happens, you should review your medical malpractice claim with a legal professional.
I want to Sue on Behalf of my Loved One in NJ, What Should I do?
If your spouse, parent, child, or another close family member was harmed by negligence, the medical malpractice attorneys at Fronzuto Law Group can help you obtain financial compensation and justice for your loved one. Contact 973-435-4551 to speak with an attorney. We offer 24/7 free consultations and encourage your call today.