Q: can a surviving spouse sue for malpractice individually or must the deceased estate sue.I’m told only the estate
can sue and me, her husband can’t individually bring a case to court.
Is this true? I reside in the state of Florida...thank you so much for anything you can offer me.
A: you will need to set up an estate on your own with estate/probate attorney, or if there's a medical malpractice case set up, attorneys like we do, have a relationship with another law firm that you can be referred to for this part. Essentially, the estate brings the case or legal action; but as a surviving spouse you are entitled to your damages, and thus again, you will be essentially the plaintiff who is to be awarded damages under the wrongful death statute (and others if they qualify as survivors). See. F.S. 768.21 will set for the damages you will be able to seek or be awarded.
Gregg M. Hollander agrees with this answer
In Florida, pursuant to Florida Statute 768.20, an action for wrongful death shall be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in the wrongful death act, caused by the injury resulting in death.
It is very common for the surviving spouse to be appointed as the personal representative of the estate. As Mr. Feldman pointed out, if an estate is not already set up, that will have to be done prior to filing the lawsuit.
If you have additional questions, please feel free to give me a call to discuss.
That's accurate. The estate is the entity that must bring the lawsuit. However, as surviving husband, you would most likely be the personal representative of the estate, and thus you would control things. Also, as the surviving spouse, you, through the estate, would have a claim for the loss of your wife.
Sorry for your loss. A medical malpractice lawyer can guide you through this.
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