The Court of Appeals of Georgia (“Georgia Appellate Court”) held in its opinion dated October 18, 2021: “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. Plaintiff does not contend or offer evidence to the effect that some external circumstance prevented Dickens from exercising her right to bring an action concerning the Decedent’s death. Thus, Plaintiff has identified no cognizable wrong or injury that requires a remedy, legal or equitable.”

Underlying Facts

Plaintiff, the sole surviving adult child of the Decedent, filed a Georgia medical malpractice action against the Defendants for the wrongful death of her father. In her complaint, Plaintiff alleged in pertinent part that at the time of the Decedent’s death, he was married to, but had long been separated from, Lisa Dickens (“Dickens”); that Dickens refused to bring a wrongful death claim in her capacity as surviving spouse because she had been separated from the Decedent for several years; and that Plaintiff filed the action in her individual capacity as the Decedent’s sole surviving child and in the representative capacity for Dickens. Plaintiff highlighted that Dickens’s failure to bring a wrongful death action within the applicable statute of limitation left Plaintiff with no other adequate remedy.

OCGA § 51-4-2 provides, in relevant part:

(a) 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.

(b) (1) If an action for wrongful death is brought by a surviving spouse under subsection (a) of this Code section and the surviving spouse dies pending the action, the action shall survive to the child or children of the decedent.

(2) If an action for wrongful death is brought by a child or children under subsection (a) of this Code section and one of the children dies pending the action, the action shall survive to the surviving child or children.

The Georgia Appellate Court held: “we find that the trial court impermissibly expanded the scope of the equitable exception as applied to the facts of this case — granting Plaintiff, an adult, standing to bring a wrongful death action where the surviving spouse, albeit estranged, elected not to do so.”

Source Connell v. Hamon, A21A0925.

If you or a loved one may have been injured as a result of medical malpractice in Georgia or in another U.S. state, you should promptly find a Georgia medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.

Turn to us when you don’t know where to turn.