Can a family member sue for medical malpractice?

Posted in: Medical Malpractice | May 19,2023

With the burden of proof resting on the plaintiff, the most common medical malpractice claims and the majority of personal injury lawsuits involve the victim working directly with legal representation to gather evidence, notify the Indiana Department of Insurance, and submit the case to a medical malpractice review panel before formally filing a claim and negotiating or proceeding to trial. However, negligence and malpractice cases can be complicated and complex, and some instances allow for or require another party to bring forth a lawsuit. When can a family member sue for medical malpractice on behalf of a loved one? In this post, we’ll explore the three occasions when individuals may file a case on a relative’s behalf.

  1. Parents or legal guardians may sue if the victim is a minor.
    If a child under the age of 18 is injured due to a medical professional’s negligence or malpractice, their parents or legal guardians are the only ones able to pursue legal action on their behalf. Any potential settlement must be used toward the child’s needs, and they’re entitled to control of the funds upon turning 18.

  2. Spouses, children, or parents may file in instances of wrongful death.
    The surviving family must pursue a wrongful death lawsuit when a victim has succumbed to injuries or a condition caused by negligence or medical malpractice. In Indiana, wrongful death cases may only be filed by the personal representative of the deceased’s estate. The executor of an individual’s will is often also their legal personal representative but doesn’t necessarily have to have power of attorney or stand to receive compensation from a settlement. State law specifies that only an individual’s surviving spouse, children, or parents (or the legal guardians of any children if their parents have died) may be awarded damages from a wrongful death settlement. 

  3. Family members granted power of attorney may file on behalf of incapacitated victims.
    In instances of potential elder abuse, negligence, or malpractice involving senior citizens in nursing homes or similar long-term care facilities, individuals of advanced age have often already granted power of attorney to a trusted family member. By signing over power of attorney, one individual allows another to make crucial decisions regarding medical, legal, or financial matters in case the victim no longer possesses the physical or mental capacity to do so. If older individuals or those with cognitive impairments can’t make sound decisions for their best interests, a family member can take legal action on their behalf.

How long does a malpractice settlement take?

Whether or not the victim is still living and able to file their own medical malpractice complaint, Indiana’s Medical Malpractice Act requires almost all cases to be filed within a two-year statute of limitations. Indiana is among the state in which the two-year “clock” for the statute of limitations begins upon the discovery of inflicted damages, not the initial causation. 

That may seem like plenty of time to pursue justice, but it’s vital that families contact qualified medical malpractice attorneys as early as possible. It’s strongly advised that families consult with reputable and experienced medical malpractice attorneys who can build the best possible case and navigate the complexities of the process. 

Exceptions are made to the state’s two-year statute of limitations for malpractice cases involving young children. For victims of birth injuries or other malpractice before the age of 6, families are given until the child’s eighth birthday to file a claim. 

No two medical malpractice lawsuits are the same, therefore there are no hard-and-fast guidelines of timeline for a typical case. The length of time required for evidence gathering, review board filing, and other legal proceedings can depend on factors such as the number of defendants or witnesses involved, the rarity or severity of the victim’s medical issues, the total amount sought in compensation, and other complex rules and processes involved in the pre-trial process. 

Nearly half the respondents to a survey by Martindale-Nolo Research reported their medical malpractice claims were resolved within six months; however, only 3% of those cases resulted in an awarded settlement. More than one-third of respondents had cases resolved from within seven months to two years, while 15% took two years or longer. In cases where plaintiffs were awarded a settlement, their duration averaged almost 17 months. 

The majority of providers, insurers, and legal counsel prefer to settle medical malpractice lawsuits outside of court and avoid a trial. In extreme cases, complex variables, legal issues such as multiple liable parties or strategic litigation delays can extend cases to take up to five years or longer.


What are three of the most common medical malpractice claims?

Surgeons face the highest rate of medical malpractice claims. In Medscape’s 2021 Malpractice Report surveying more than 4,350 physicians across 29 medical specialties, 83% of practitioners in the plastic surgery sector reported having experienced a lawsuit filed against them. The same rate repeated among general surgeons, while 81% of orthopedic practitioners reported facing malpractice claims in their careers.

According to Medscape, the most common medical malpractice claims include: 

  • A failure to diagnose or delayed diagnoses (Included among 31% of cases)
  • Complications from surgery or treatments (29%)
  • Poor outcomes or the progression or worsening of a condition following surgery (26%)

Exploring Your Family’s Legal Options with Montross Miller

If the youngest or oldest members of your family have been victims of medical malpractice, or the negligent actions (or inaction) of trusted healthcare professionals led to harmful or fatal results, Montross Miller can help. Your family member doesn’t have to take on the legal system alone—and neither do you. Our team includes a board-certified physician and highly experienced attorneys who are intimately familiar with the complexities of Indiana’s Medical Malpractice Act, the Patient’s Compensation Fund, Department of Insurance requirements, and every aspect of the state’s civil court system. 
Montross Miller lawyers can review your family’s circumstances and available evidence, answer your questions, and help you move forward. Our team has helped recover millions of dollars for families with loved ones unable to represent themselves or pursue the justice they deserve. Contact Montross Miller today to schedule a confidential, complimentary case evaluation.