Personal Injury Lawyer Blog
It is worth noting that situations similar to those described in this wrongful death case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)
Facts
Plaintiffs’ First Amended Complaint is brought by Robyn Lee, individually, and as the representative of the Estate of James Smith. (See Plaintiff’s First Amended Complaint.) According to plaintiffs’ First Amended Complaint, Robyn Lee is the daughter of James Smith and the representative of his estate. Plaintiffs also allege that on February 17, 2008, decedent, an elderly man who walked with the aid of a walker, allegedly tripped and fell striking his forehead and suffering injuries. Plaintiffs allege that decedent died on June 23, 2009. Plaintiffs allege two causes of action against Dr. Goldstein: medical malpractice – survival and wrongful death. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
The Court Should Grant Defendant’s Motion for Judgment On The Pleadings As To Plaintiffs’ Second Cause Of Action For Medical Malpractice – Survival.
Robyn Lee is not the successor-in-interest or legal personal representative of decedent’s estate.
C.C.P. §377.20 provides that a cause of action for a person is not lost by reason of the person’s death, but survives. C.C.P. §377.11 states that decedent’s successor-in-interest means the beneficiary of the decedent’s estate, or other successor-in-interest who succeeds to a cause of action. C.C.P. §377.10 defines the term Beneficiary of Decedent’s Estate. It states that beneficiary of the decedent’s estate means: (a) If the decedent died leaving a will, the sole beneficiary or all of the beneficiaries who succeed to a cause of action…under the decedent’s will; (b) If the decedent died without a will, the sole person or all of the persons who succeed to a cause of action….
C.C.P. §377.30 describes who may commence decedent’s cause of action as his successor-in-interest. It provides, A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor-in-interest…and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor-in-interest. (emphasis added). C.C.P. §377.32 requires an affidavit or declaration by decedent’s successor-in-interest in order to commence or continue decedent’s cause of action. It provides:
“the person who seeks to commence an action or proceeding as the decedent’s successor-in-interest, shall execute and file an affidavit or declaration under penalty of perjury under the laws of this state stating all of the following: (1) The decedent’s name; (2) The date and place of decedent’s death; (3) No proceeding is now pending in California for administrative of the decedent’s estate; (4) If the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent’s cause of action to the successor-in-interest.” (See Part 4 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.