Articles Posted in Wrongful Death

MARTA v. Maloof decided yesterday by the Georgia Court of Appeals holds that a wrongful death claim is not stayed by Georgia Code Section 9-3-92 (Tolling time for Unrepresented Estates). This holding affects the time in which an estate may bring a wrongful death claim. The reasoning is odd and this case is not helpful to plaintiffs who are pursuing a wrongful death claim on behalf of the estate.

Under O.C.G.A. § 9-3-92 an estate claim should be tolled. The code sections state:

9-3-92. Five-year tolling for unrepresented estate — In favor of estate

The Supreme Court of Georgia recently clarified and re-affirmed a surviving spouse’s legal right to obtain copies of the deceased spouse’s medical records. Alvista Healthcare Center v. Miller, 2009 Ga. LEXIS 679 (2009).

The Court made it clear that when one’s spouse dies, a copy of the deceased’s medical records may be legally obtained by the estate executor or administrator (if the estate is represented) or by the surviving spouse. I regularly receive calls from a husband or wife who has lost their spouse and who has properly requested and been improperly denied their deceased spouse’s medical records and bills from insurance companies, doctors, dentists, doctors, nursing homes, and a whole host of other medical care providers.
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Under Georgia law, when a death results from a crime or negligent act, the estate of the deceased (the “Estate”), is entitled to recover two general types of damage. The first is damages from the negligent party for funeral expenses, medical expenses, and any other expenses flowing from the injury or death. This portion of the wrongful death damages is limited and precise (and known as special damages in legal terms). The second element of damages is not.

In addition to the above, the measure of wrongful death damages in Georgia includes the full value of the life of the decedent without deducting for any of the personal expenses had the decedent lived. In other words, the Estate can also recover the amount equal to what the deceased would have recovered from the negligent party had the deceased lived but rendered totally disabled.
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