Legal malpractice expert witness advises on law firm’s negligence in nursing home wrongful death case

Kristin Casler

Written by
— Updated on October 11, 2017

Legal malpractice expert witness - nursing homeA legal malpractice expert witness advises on a case involving the family of a nursing home negligence victim. Plaintiffs are the nieces and nephews — the only living relatives — of a woman who allegedly died as a result of substandard nursing home care. The plaintiffs contracted with the defendant law firm to prosecute the wrongful death case against the nursing home. The trial court granted the defendant nursing home summary judgment, finding the family members did not have standing to bring the lawsuit because no estate had been opened and the action was not asserted by the estate or a spouse, parent, child or sibling as required by the state’s wrongful death statute. While the law firm had filed a petition in chancery court to open the estate, it did not obtain a determination of heirship or seek permission to assert a claim on behalf of the heirs. It also did not file a response to the motion for summary judgment and did not appeal.

The heirs sued the law firm for legal malpractice, negligence, gross negligence, fraudulent concealment, breach of contract, breach of fiduciary duty and for actual and punitive damages.

Question(s) For Expert Witness

  • 1. What duties did the law firm owe its clients?
  • 2. How did it violate those duties?

Expert Witness Response

No steps appear to have been taken to open an estate for the decedent before the lawsuit was filed. Defendants were negligent and breached the standard of care by failing to open an estate and failing to bring the action in the name of the personal representative of that estate. Defendants were aware from the outset of their representation that the plaintiffs claimed to be only the nieces and nephew and could not sue in their own names for the wrongful death. The plaintiffs were not entitled to receive wrongful death damages directly, as descendants of a sibling of the decedent, but they were entitled to a share of her estate, of which any wrongful death damages collected would be a part.

Pursuing the underlying action in the plaintiffs’ names was a futile gesture and grossly negligent. A reasonable, prudent attorney would have petitioned to open an estate and brought the action in the name of the appointed personal representative for the benefit of all heirs and creditors of the estate. The attorney also should have sought to substitute the representative after the motion for summary judgment was filed. Even if the motion had been granted, seeking substitution of the real party in interest would have provided a good ground for appeal.

Additionally, the nearly $2 million demanded by the defendants in the underlying litigation was within the appropriate range. Had this action been properly pled and prepared, a verdict or settlement of this amount or greater would have been a probable outcome.

The expert has been an attorney for more than 30 years specializing in medical malpractice.

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