Here an interesting medical malpractice case out of Tennessee worth discussing that relates to substituting plaintiffs in a medical malpractice case. In this case, Holley v. Blackett, the Tennessee Court of Appeals allowed common sense to triumph, reversing a trial court’s entry of summary judgment in a wrongful death breast cancer misdiagnosis medical malpractice lawsuit, allowing the minor daughter of a man who died while pursuing claims for his wife’s death to be named as the plaintiff.
Here are the facts: A husband brings a medical malpractice action on behalf of his wife, alleging her cancer was misdiagnosed and caused her death. This is a failure to diagnose a stroke case. The doctor filed a motion for summary judgment. While the motion was pending, the husband dies. This is where it gets a little weird. Plaintiff’s malpractice attorney has the husband’s daughter substituted as the plaintiff. The minor girl was born as the result of an extramarital affair that husband had during his marriage.
Crazy, right? I can’t help but think about it from the dead wife’s perspective. Would she still support the claim? I’m assuming she is in a place now where you don’t get caught up in the now trivial, but at the time grievous, sins committed on earth. But still. The trial court dismissed the case, finding that the substitution was flawed because the malpractice lawyers never bothered to, ah, get permission from the girl’s guardian.