Who Can Bring a Wrongful Death Case in Georgia?

Who Can Bring a Wrongful Death Case in Georgia?

There are two types of claims that a surviving family can bring after someone in their family is killed: an “Estate Claim” and a “Wrongful Death Claim”.  Our law firm handles both claims.

The Estate claim addresses any medical bills the person incurred before he died. It also addresses the pain he felt before he died. And, it addresses the fear and anxiety he experienced in the minutes/moments leading to his death.

The Wrongful Death claim addresses the life lost. By that we mean what the person’s life meant to him.

WHO can bring the two actions is important.

The Georgia Court of Appeals recently held that the patient’s husband, not her mother or adult children, had authority to bring a wrongful death action. As a consequence of the wrong person bringing the claim, the appellate court held that the trial court erred in submitting the wrongful death claim to the jury.


The patient died following a surgical procedure. Her mother and her adult children sued the surgeon for medical malpractice and ordinary negligence, seeking damages for wrongful death and other claims. A jury returned a verdict for the plaintiffs of $3 million.

The defendants appealed, arguing that the plaintiffs lacked authority or “standing” to bring a wrongful death action.

On May 3, 2016, the surgeon operated on the patient to remove an ovarian mass. When the patient returned home later that day to recuperate, she was in significant pain, and her mother contacted the surgeon because “it seemed like something was wrong.” Although the surgeon’s staff made suggestions for managing the pain, the patient’s discomfort continued. The mother called an ambulance that evening, and her daughter went back to the hospital. She was admitted but released the following day. Back at home, the patient remained in discomfort. The next day, her mother called the surgeon’s office multiple times, reporting that the patient’s condition hadn’t improved and that she thought that something was wrong. But the surgeon’s office never returned her calls.

The next day, the patient was agitated and “out of her head.” After her mother again called the surgeon’s office, they finally responded, saying that the surgeon had written a prescription for a pain medication. Later that night, however, the patient became unresponsive and died. An autopsy revealed that a small perforation or hole in her bowel had caused an abdominal infection, resulting in her death. The medical examiner who conducted the autopsy concluded that the perforation occurred during the surgery performed by the surgeon.

The plaintiffs sued to recover for the patient’s wrongful death, pre-death pain and suffering, medical expenses, and additional damages. At trial, a medical expert testified that the perforation occurred during surgery, that the surgeon failed to discover and remedy the perforation, and that the perforation caused the patient to enter septic shock, leading to her death. The jury awarded the plaintiffs $3 million, and this appeal followed.

Did the Plaintiffs Lack Authority or Standing to Bring Wrongful Death Claim?

Judge Amanda H. Mercier wrote in her opinion for the Georgia Court of Appeals that wrongful death actions are governed by Georgia’s Wrongful Death Act, OCGA § 51-4-1 et seq. The judge explained that because there’s no common law right to file a claim for wrongful death, the Act must be limited in strict accordance with the statutory language. The Act addresses standing specifically, identifying the circumstances under which particular classes of individuals may bring a wrongful death claim. Pursuant to OCGA § 51-4-2 (a):

The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.

If there’s no surviving spouse or child, the decedent’s parents may file a wrongful death claim. And if no person is otherwise entitled to bring the claim, the administrator or executor of the decedent’s estate may file a wrongful death action.

Judge Mercier noted that the plaintiffs were the patient’s mother and two adult children. As noted above, a decedent’s children, parents, and estate executor were in the line of succession to bring a wrongful death action. However, the first person authorized to file a claim is a surviving spouse, and the record showed that the patient was married at the time of her death.

In spite of the fact that she and her husband were estranged, they were still married when the patient died. The plaintiffs cited no evidence that her husband wasn’t alive at the time of trial. In fact, he provided deposition testimony during the litigation.

Judge Mercier explained that under the plain terms of OCGA § 51-4-2 (a), the patient’s husband was the proper party to seek recovery for her wrongful death. Nevertheless, the plaintiffs argued that the trial court had equitable authority to grant them standing because the patient’s estranged husband lacked a relationship with one son, wasn’t the other son’s father, and elected not to pursue a wrongful death claim. The trial court agreed, purporting to vest “exclusive standing” in the patient’s mother and children.

Is There an Equitable Exception to Wrongful Death Standing?

The judge acknowledged that Georgia courts have applied an equitable exception to the wrongful death standing requirements in cases involving minor children and a surviving spouse who can’t be found or elects not to file a claim. However, this case didn’t involve minor children. Even so, the patient’s mother and her adult children sought an exception to the Act’s provisions. But the Court recently determined that the exception doesn’t extend to adult children in a case like this.

In that decision, the Court of Appeals said:

Even when there are compelling circumstances, we cannot ignore the plain language of the statute and rewrite it to suit the facts of a particular case. The right to make such revisions or amendments is placed in the hands of the legislature, not the courts.

Therefore, pursuant to the Georgia Wrongful Death Act, the patient’s husband — not her mother or adult children — had authority to bring a wrongful death action. And while equity permits a trial court to avoid the Act’s strict standing requirements in some situations, this wasn’t such a case, Judge Mercier held. Here, the trial court improperly expanded the equitable exception by granting the plaintiffs wrongful death standing over a surviving spouse. But the plaintiffs weren’t entitled to recover for the patient’s wrongful death, and the trial court erred in submitting their wrongful death claim to the jury.

The judgment was vacated and case remanded. Northeast Ga. Med. Ctr., Inc. v. Metcalf, 2022 Ga. App. LEXIS 170, 2022 WL 872220 (Ga. App. March 24, 2022).

If you have questions…

If you have lost someone you love, we’re sorry you are here dealing with this tragedy. If you have questions, you are welcome to call us at 404-JUSTICE (404-587-8423) or contact us via email through our contact form.