Where Spouse Won’t Bring Wrongful Death Lawsuit, Others Can


In the Supreme Court of Georgia ruled on February 7, 2023, in the case of Hamon v. Connell et al., that Diane Dickens Hamon could file a medical malpractice action for the wrongful death of her father, James Isaac Dickens, Jr. against William Clark Connell, M.D., and South Georgia Emergency Medicine Associates, P.C. (collectively “Appellees”).

As you may recall, the list of who has the right to file a wrongful death lawsuit in Georgia is strictly controlled. If the decedent is married, that spouse has the sole right. If they are not married, the right goes to any children, if there are no children then it goes to the parents.

In this medical malpractice case, the spouse refused to file a suit, so the Appellees argued that the adult child, Hamon, did not have the right to bring the claim because Dickens had a surviving spouse. The trial court initially denied the motion, but the Court of Appeals reversed the decision. The Supreme Court of Georgia granted Hamon’s petition for certiorari to consider the issue and concluded that the trial court had properly denied the motion for judgment on the pleadings, so the Supreme Court reversed the Court of Appeals decision.

The Court laid out a few strains of thought that are important though:

  1. It looks like you have to file in Superior Court because you are asking the Judge to exercise their equity powers to give you standing to sue.
  2. The fact that the kids were adults does not matter. The law does not favor loss of legal rights, so if the proper wielder is going to refuse to exercise them, equity will give that right to the children.

We have issues like this arising frequently in cases. Families do not always get along and dealing with the loss of life can make the situation more tense. Be sure to reach out and consult with us for free if you have questions about who has the standing to bring a wrongful death lawsuit.

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