Substituting Plaintiffs in Malpractice Cases

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 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 was flawed because the malpractice lawyers never bothered to, ah, get permission from the girl’s guardian.

The Tennessee Court of Appeals reversed finding that the amended complaint should relate back because we have the same doctors and the same allegations of malpractice.

Substitution of Parties

Ultimately, there are cases where substitution of parties is permissible even after the statute of limitations has passed.  The new party or parties may come into the action in three different ways: (1) they can join the lawsuit voluntarily by intervention; (2) they can be brought in as additional parties, and (3) they can be substituted for the original party.   Ultimately, in this case, the husband estate should be the one to inherit the claim and that would have been an appropriate substitution, at least in Maryland.

We had a medical malpractice case in Carroll County in 2017 that we really liked.  Tragically, our plaintiff died of unrelated causes.  So it was not a wrongful death claim.  His estate was substituted as the plaintiff. Is it as powerful a pain and suffering claim when the family is seeking damages for the pain and suffering of their already deceased loved one?  Typically, it is not.

You can find the full opinion in this case here.