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In Joan Rivers' Possible Wrongful Death Case in NY, Why Can't Melissa Rivers Simply Start a Lawsuit Against the Endoscopy Center and the Doctors Who Cared for her Mom?

That would be too simple, right?

We know that Melissa Rivers' was Joan Rivers' only child. It's public knowledge.

If true, and Melissa feels that the endoscopy center where Joan Rivers had an endoscopy that went tragically wrong, why can't she simply hire an attorney and begin a lawsuit immediately?

Ahh...the answer will surprise you.

There are two reasons why she can't do it immediately.

REASON #1

In NY, when someone dies, they leave an 'estate'. That means that all of their posesssions, property and money are now sitting there waiting to be distributed to remaining family members. If someone dies as a result of a doctor's carelessness and negligence, that person, if they had survived, would have been able to bring a lawsuit on their own behalf against that doctor or hospital.

However, since they can no longer bring a case on their own (they're dead), a family member must step into their shoes in order to bring that lawsuit for them.

What that really means is that a family member must be named as the legal representative of the 'estate' I mentioned a little earlier. No, they don't have to be a lawyer or have any legal training. It literally could be any family member.

Usually it would be the husband or wife of the person who died. If they are not married, it then would be one of the adult children. If there are no adult children, then we look to the next closest adult relative.

In Joan's case, Melissa would be the natural pick to represent her mom's 'estate'.

In fact, we know from recent news reports that the New York City law firm that Melissa recently hired has taken steps to have Joan's last will and testament probated in the Surrogate's Court in New York County.

What does that mean?

It means that in order for Melissa to be properly named in place of Joan, her attorneys have to file Joan's will with the Surrogate's Court. That's the court that is responsible for overseeing 'estates' here in New York. According to the NY Post, the legal representative of Joan's 'estate' is none other than Melissa Rivers.

Ok, so now you know Reason #1 why Melissa Rivers' attorneys can't immediately start a lawsuit for medical malpractice and wrongful death.

This MUST be done first. That brings me to Reason #2...

REASON #2

In every medical malpractice matter here in NY, we are required to get a medical expert to confirm that there was (1) wrongdoing, (2) that the wrongdoing caused injury and (3) that the injury is significant an/or permanent. That's an absolute requirement.

Ok, so why can't Melissa's attorneys go ahead and simply hire board certified medical experts in the field of gastroenterology and otolaryngology to conclude that there were violations from the basic standards of medical care?

Ahh...here's the rub...

They can. But, what documents will they have reviewed in order to come to those conclusions?

None yet.

Why not?

Because the attorneys cannot legally request Joan Rivers' medical records...yet.

Why not?

Because Melissa Rivers has not yet been formally appointed as the legal representative of Joan's estate by the Surrogate's court.

You see, Melissa's attorneys must send a permission slip to the endoscopy center and Joan's doctors in order to obtain her medical records. Legally, that's known as sending a HIPPA compliant authorization to the health care facility and the doctor's offices.

"Ok," you say. "So what's the problem? Why the delay?"

If Joan were alive, she could sign those permission slips, giving her attorneys the legal authority to obtain copies of her medical records.

Since she's not alive, the family member who is representing her estate must sign those permission slips instead.

Ahh...

As of today, Melissa Rivers is likely on track to get that permission from the Surrogate's court, but has not yet formally gotten it. 

What that means is that her attorneys are unable to obtain Joan's medical records UNTIL the Surrogate's court approves the paperwork that names Melissa as the legal representative of Joan's estate.

What happens once the Surrogate's court approves Melissa as the representative of Joan's estate?

Then they will issue a document that says Melissa Rivers is now the legal representative of her mom's estate. Only then can she legally sign the permission slips for her attorneys to get Joan's medical records.

The act of actually retrieving copies of all of Joan's medical records can take weeks and sometimes months.

Then, after obtaining all of Joan Rivers' medical records the attorneys will painstakingly go through them with a fine tooth comb. After that, they will they forward those records to medical experts for full evaluation. 

Only if the medical experts confirm that there were violations from the basic standards of medical care and those departures from good care were a cause of Joan River's injuries and ultimate death, then and ONLY then, can Melissa's lawyers begin the process of starting a medical malpractice/ wrongful death case against the endoscopy center and various doctors who cared for Joan on that fateful day.

The attorneys would then prepare the papers to actually start the lawsuit, known as a summons and complaint.

The 'summons' puts the people who are being sued on notice of a lawsuit. It basically says "HEY YOU...YES, YOU. YOU ARE BEING SUED IN A LAWSUIT. PAY ATTENTION. YOU HAVE A LIMITED TIME TO ANSWER THE ALLEGATIONS RAISED IN THE COMPLAINT."

The 'complaint' is a document that lists the allegations against the doctors and the endoscopy center staff. In some cases, the allegations are very specific. In other cases, it is very generic.

It is also critical to include the legal entity that is responsible for the doctors and endoscopy stafff.

What does that mean?

It means that Melissa's attorneys must do research to determine if the gastroenterologist was practicing medicine under a corporate name or a limited liability corporation or a professional corporation. If so, that legal entity must also be included in the lawsuit.

Why is that done?

Often the doctor is an employee of a medical group. The medical group often operates as some type of corporation. In New York, the law says that an employer is legally responsible for the actions of their employees. Legally, that's called vicarious liability.

Well, what happens once those papers are completed and ready to go?

Then those papers must be filed in the Supreme Court of the State of New York. That's the trial level court here. In Joan Rivers' case, it would likely be filed in New York County at 60 Centre Street. The attorneys must pay a filing fee in order for the Court to accept the summons and complaint and then the lawyers are given an identification number for their brand new lawsuit. That identification number is known as an 'index number'.

Great. Now her lawsuit is started. Once that happens, I guarantee you that the media will be all over the fact that Melissa Rivers has formally started the lawsuit against those doctors and staff that took her mom's life.

But wait! There's more...

This is just the very first step. There are many more ahead...

The next step will be to take copies of the lawsuit papers, the summons and complaint with the new index number, and now deliver these papers to the doctors and staff who are being sued.

Well, wait a second...

Do the lawyers actually show up at the doctor's office and hand deliver the lawsuit papers to the doctors being sued?

No, not exactly.

Ok, so how do those lawsuit papers get delivered to the people being sued?

Glad you asked.

The attorneys hire someone called a 'process server' to deliver those papers. You see, there are specific requirements to how those papers must be delivered. There are specific requirements about who can accept those papers. In some cases, when notifying the professional corporation, we actually have to send them to the New York Secretary of State.

The person who delivers those papers must then prepare a document swearing that they delivered the lawsuit papers to a particular person who was either the person named in the lawsuit, or someone authorized to accept it on the doctor's behalf.

The process server then must file that sworn document, known as an affidavit, with the Court to let them know that the appropriate people have now been given the lawsuit papers.

What happens next?

The next phase is that the doctors and the professional corporations must send the lawsuit papers to their medical malpractice insurance companies. The insurance company will then hire different law firms to represent the doctors and staff being sued. These defense lawyers will then get copies of the lawsuit papers with the warning that there is an upcoming deadline in which to respond to the allegations in the complaint.

Ok, what happens after that?

The defense lawyers are at a slight disadvantage here.

They are coming in cold, without having any records and without having any discussion with their doctor clients. Often, the defense lawyers will reach out to the plaintiff's lawyers (the attorneys for the surviving family) and ask for additional time in which to reply to the allegations.

That is customarily given. It could typically be two to four weeks additional time to answer the allegations in the complaint.

In this case, Melissa's attorneys would need to be contacted to ask for some additional time to answer the complaint.

Often, a smart plaintiff's attorney will ask for a quick concession in exchange for agreeing to give the defense some additional time to answer the allegations. What this means is that we will often say "Sure, you can have a few extra weeks, but only on the condition that you do not dispute how your client was given these lawsuit papers."

Legally, that's known as contesting jurisdiction. It often arises as a knee-jerk defense where the defense attorneys automatically argue that the doctor was not properly handed the lawsuit papers. If true, we would then have to hire our process server all over again to go out and deliver the lawsuit papers to the doctor and his professional corporation.

What's the big deal you ask?

If the time limit to file a lawsuit is close to expiring or has expired, this could be an explosive issue that could derail the lawsuit at the very beginning.

In this case, Melissa has two years from the date of her mom's death within which to start a medical malpractice/ wrongful death lawsuit.

Once the defense lawyers speak to their clients they will prepare a document known as an 'answer'.

Catchy name for a legal document, huh?

The 'answer' then gets mailed to Melissa's attorneys.

Melissa's attorneys then take that specific answer for that doctor and match it up to the allegations.

Which allegations did the defense admit? Which did they dispute?

Once this is matched up, now Melissa's attorneys will have a good idea of what issues are disputed.

I do want to share a secret with you though.

Typically, a defense attorney will DENY virtually all the allegations in such a lawsuit. That's the knee-jerk reaction designed to protect the physician and the professional corporation. The details of who did what and who is actually responsible get sorted out later.

This is just the beginning of a long legal process...

Now you know the reason why Melissa Rivers has been unable to start a lawsuit immediately in order to recover compensation for her mom's untimely death here in New York. It also gives you some insight into what goes on in a medical malpractice & wrongful death case and explains how the beginning part of this lawsuit process works. Stay tuned for more!

To learn even more about what a surviving family needs to prove in a wrongful death case, I invite you to watch the video below...