June 6, 2022

Georgia’s Wrongful Death Act (“the Act”), OCGA § 51-4-1 et seq., provides in § 51-4-2 (a): “[t]he 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.” Absent a surviving spouse or child, the decedent’s parents may file the wrongful death claim. OCGA §§ 19-7-1, 51-4-4. And if no person is otherwise entitled to bring the claim, the administrator or executor of the decedent’s estate may file a wrongful death action. OCGA § 51-4-5 (a).

In a Georgia medical malpractice wrongful death case that the Court of Appeals of Georgia (“Georgia Appellate Court”) decided on March 24, 2022, the decedent died following a surgical procedure. The decedent’s mother, acting individually and as executrix of her daughter’s estate, and her adult children, acting individually, sued the surgeon and several additional providers for medical malpractice and ordinary negligence, seeking damages for wrongful death and other claims. At the end of a multi-day trial, a Georgia medical malpractice jury returned a general verdict for the plaintiffs in the amount of $3 million.

On appeal, the Georgia Appellate Court stated: “a decedent’s children, parents, and estate executor are in the line of succession to bring a wrongful death action. The first person authorized to file a claim, however, is a surviving spouse. See OCGA § 51-4-2 (a). And the record shows that Mitchell was married at the time of her death. Although she and her husband were estranged, they were still married when Mitchell died, and the plaintiffs have cited no evidence that her husband was not alive at the time of trial. In fact, the husband provided deposition testimony during the litigation. Under the plain terms of OCGA § 51-4-2 (a), Mitchell’s husband was the proper party to seek recovery for her wrongful death.”

The Georgia Appellate Court held: “Pursuant to the Act, Mitchell’s husband — not her mother or adult children — had authority to bring a wrongful death action. Although equity permits a trial court to avoid the Act’s strict standing requirements in some situations, this is not such a case. As in Connell, the trial court improperly expanded the equitable exception by granting the plaintiffs wrongful death standing over a surviving spouse. See Connell, supra at 837. The plaintiffs were not entitled to recover for Mitchell’s wrongful death, and the trial court erred in submitting their wrongful death claim to the jury. See id. at 838-389; King v. Goodwin, 277 Ga. App. 188, 188-190 (626 SE2d 165) (2006) (affirming summary judgment for defendants on wrongful death claim not brought by proper party). Given the jury’s general verdict for the plaintiffs, we cannot determine what portion of the $3 million award related to the improper wrongful death claim. Accordingly, we must vacate the judgment entered on the jury’s verdict and remand for a new trial on the non-wrongful death claims.”

Source Northeast Georgia Medical Center, Inc. v. Metcalf, A22A0149.

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