ATLANTA (Legal Newsline) - Children don’t have standing to sue over a parent’s death if the surviving spouse refuses, a Georgia appeals court ruled, trimming the so-called equitable powers of judges to provide plaintiffs with a remedy when other legal avenues appear blocked.
Diane Dickens Hamon sued Dr. Winston Clark Connell and his medical practice over the death of her father, James Dickens, after the man’s widow declined to file a wrongful-death lawsuit. The trial judge allowed the suit to proceed over the objections of the defendants, determining that the widow had been separated from her husband for years and her failure to sue within the two-year statute of limitations would leave Hamon with no chance of recovering damages.
The Georgia Court of Appeals reversed the lower court in an Oct. 18 decision. Since there is no common-law right to file a wrongful-death claim in Georgia, the appeals court ruled, the text of the state’s Wrongful Death Act governs. And that law gives surviving spouses the exclusive right to sue, with that right passing to children only after the spouse’s death.
There was no question Dickens’ spouse was still alive, the appeals court said, so the only issue was whether the trial judge could grant standing to the plaintiff anyway.
Georgia grants judges the power to fashion equitable remedies, in other words to order parties to do or refrain from doing something instead of simply paying damages. But there are limits, as the Georgia Supreme Court observed: “Although equity does seek to do complete justice, it must do so within the parameters of the law.” Courts can’t use their equitable powers to existing rights or defined legal principles, the high court ruled.
That said, the Georgia Supreme Court has made exceptions to the wrongful-death statute in two cases. It allowed children to sue over the death of their father when the surviving spouse couldn’t be found, because otherwise no one could seek a remedy. It also allowed children to sue when the spouse was the cause of the parent’s death.
In a decision even closer to the situation facing Hamon, the Court of Appeals allowed children to pursue a wrongful death claim even though his widow only joined the case after the two-year statute of limitations had expired. The appeals court said that decision didn’t determine whether the children had standing to sue; it only held that the motion to add the widow “related back” to the underlying medical malpractice case.
If Georgia lawmakers had wanted to create “fallback standing” for children when a spouse refuses to sue, the appeals court, they could have done so. The wrongful death law allows parents to sue over the death of a child, for example, and if they are divorced or separated and one refuses to sue, the other can sue on behalf of both.
State law does require surviving spouses to respect the rights of children when they file a wrongful death action and share proceeds in any recovery, the appeals court said. But the surviving spouse has exclusive right to sue, settle, and release the defendant from liability. The court declined to say whether the children could sue the widow for failing to pursue a case on their behalf.
“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 appeals court concluded. “The right to make such revisions or amendments is placed in the hands of the legislature, not the courts.”