Wrongful Death Claim Allowed to Proceed, Despite Potential Notice Defect
When a plaintiff decides to name a defendant in a lawsuit, that plaintiff must show the court that he or she served the defendant with notice of the suit. This is a strict procedural requirement that, if it is ignored or inadequately executed, may result in dismissal of the case.
That is exactly what happened to the plaintiff in a wrongful death action filed in Kansas back in 2010, when a lower court dismissed a woman’s case against a defendant doctor because she served him notice of the lawsuit only four days prior to filing the suit.
The facts are as follows. A woman was admitted to the hospital for treatment
but died while under the hospital’s care. The executor of the woman’s
estate (the plaintiff) then provided notice to the defendants that she
would be proceeding with a wrongful death claim against them based on
the physician’s alleged medical malpractice. Just four days later,
the lawsuit was filed.
The defendants sought dismissal of the claim, based on a statute that requires a plaintiff to provide notice of the suit 120 days before the suit is filed. The court, applying that law, dismissed the woman’s case. She appealed to the intermediate court of appeals, which affirmed the lower court’s decision.
It wasn’t until the woman appealed again to the state’s supreme court that the case was reversed. The Supreme Court of Kansas held that the statute at issue only applied to municipalities, not employees of municipal agencies. This means that, while a plaintiff must provide a municipality with 120 days of notice before filing a lawsuit, the same is not true when naming a non-municipality; even if the defendant is employed by a municipality.
Procedural Rules in Wrongful Death Lawsuits
While the case discussed above occurred in Kansas, Maryland has its own set of strict procedural rules and regulations that must be followed. The notice requirements discussed above are just one set of procedural rules that plaintiffs must comply with. In some cases, the failure to comply with a rule or regulation can mean dismissal with prejudice, meaning that the case cannot be re-filed and the plaintiff forever loses his or her ability to recover.
If you have lost a loved one in a Maryland malpractice incident, contact a dedicated Maryland personal injury attorney to discuss your case.
Have You Been the Victim of Medical Malpractice?
If you or a loved one has recently been the victim of medical malpractice, there are myriad requirements that must be met prior to filing your lawsuit. In fact, the procedural requirements don’t end there. There are strict procedural requirements throughout the entire process. To learn more about medical malpractice lawsuits in Maryland, and to discuss your case with a dedicated and experienced medical malpractice attorney, contact the law firm of Wais, Vogelstein, Forman & Offutt. The attorneys at WVF have decades of combined experience seeking justice for Maryland medical malpractice victims. Call (410) 567-0800 to set up a free initial consultation.