Background Facts
Daughter’s Wrongful Death Malpractice Lawsuit moves forward: Diane Dickens Hamon (“Hamon”) filed a medical malpractice action against William Clark Connell, M.D., and South Georgia Emergency Medicine Associates, P.C. for the wrongful death of her father, James Isaac Dickens, Jr. (“Dickens”). Dickens died on February 15, 2018. Hamon is an adult and Dickens’s sole surviving child. At the time of his death, Dickens was married to, but had long been separated from, Hamon’s mother, Lisa Dickens, who refused to bring a wrongful death claim in her capacity as Dickens’s surviving spouse.
In an effort to preserve the wrongful death claim, Hamon filed a Georgia medical malpractice wrongful death action, in both her individual capacity as Dickens’s surviving child and in a representative capacity for Lisa Dickens. The complaint also asserted that Hamon intended to file a motion to add Lisa Dickens as an indispensable party to the action.
OCGA § 51-4-2 (a) provides: “The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.”
The defendants moved for judgment on the pleadings asserting that, because Dickens had a surviving spouse, Hamon did not have the right to bring the claim. The trial court denied the motion yet the Georgia Court of Appeals reversed.
In its February 7, 2023 Opinion, the Supreme Court of Georgia stated that Georgia’s appellate courts previously have recognized equitable exceptions to the “spousal standing” rule in favor of a decedent’s surviving children. However, the Georgia Court of Appeals held in its decision in the present case that “no Georgia statute or case gives adult children a right to file a wrongful death action to recover damages for the death of a parent even if a surviving spouse declines to exercise his or her right to bring such an action” and distinguished cases in which the Georgia Supreme Court and the Georgia Court of Appeals had permitted a child under similar circumstances to pursue a wrongful death action under equitable principles as only applying to minor children.
The Georgia Supreme Court stated in the present case: “Although Brown and the cases before Connell each involved minor children, there is nothing in the language of those cases or the equity statutes themselves to suggest that only
minor children may benefit from the equitable principles at issue here. None of the cases based the application of those principles on a consideration of the child’s minority. Although this Court described the children in Brown as minors, there is no indication that this Court’s analysis turned on that fact. Rather, we held that the application of equity was necessary to preserve their rights where they had “no remedy at law to maintain an action for the wrongful death of their mother.” Brown, 261 Ga. at 215-16 (2) (b) (emphasis omitted).”
The Georgia Supreme Court held in the present case: “the prior version of the wrongful death statute gave an unqualified right of action “upon the sole ground of [the] relationship existing between parent and child” and that the question of dependency was “absolutely immaterial.” Peeler, 163 Ga. at 789-90. Accordingly, the Court determined that the decedent’s adult daughter could assert a claim for his wrongful death. Id. We conclude here that the use of the same language in the Act supports that no distinction may be drawn between minor and adult children with regard to the right of recovery for wrongful death.”
Source Hamon v. Connell, S22G0405.
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