The nature of medical malpractice defense is such that the death of a party to pending litigation is not uncommon. Although the subject is treated in §§1015 and 1021 of the Civil Practice Law and Rules, the practical problems to be addressed on the death of a party remain many and varied.

Most causes of action in medical malpractice cases will survive the death of the party, even though the court loses personal jurisdiction over the party at the moment of death. Griffin v. Manning, 36 A.D.3d 530 (2007). Even where counsel proceed in good faith to litigate the matter with no actual knowledge of a party's death, any order of the court and presumably any deposition testimony taken between the time of death and the substitution of the personal representative of the deceased party are legal nullities. Singer v. Riskin, 32 A.D.3d 839 (2006). Courts have held that the parties who participate in discovery despite the automatic stay could possibly “waive” the legal nullity (Nieves v. 109th Street Corp., 112 A.D.2d 59 (1985)) but how a complete lack of jurisdiction over a non-party estate representative is waivable is unclear.

In fact, the courts make it apparent that the language of CPLR §1015 means exactly what it says; “the court shall order substitution of the proper parties.” Unless the personal representative is the movant, the court must obtain personal jurisdiction over the estate which was lost upon the death of the decedent. This usually means that motion practice is required and the moving papers need to be served upon the personal representative in the manner in which a summons is served. Horseman v. Huch, 50 A.D.3d 963, 856 N.Y.S.2d 663 (2008). The moving papers generally include the pleadings, proof of death, proof of the appointment of the personal representative, and a proposed amended caption with a request to lift the stay. An attorneys' stipulation substituting the personal representative as a party defendant is not effective (Bossert v. Ford Motor Co., 140 A.D.2d 480 (1988)) since again, counsel for the deceased party has no authority to act on behalf of the decedent pending the appointment of the personal representative.

Death of a Plaintiff

Where a plaintiff has died during the pendency of malpractice litigation, counsel for that party loses all authority to act on behalf of the deceased and an automatic stay of proceedings is imposed as of the time of death. Hemphill v. Rock, 87 A.D.2d 836 (1982). That attorney may represent other parties, but even where the deceased person was a minor player, with a circumscribed claim, the death imposes a stay which will only be lifted when the personal representative is appointed. This is because the court must approve the disposition of the estate's claim.

The motion to substitute the personal representative of the decedent is frequently accompanied by a motion to add a cause of action to the underlying complaint, that being a wrongful death claim. Although the wrongful death claim is a separate statutory claim, the Court of Appeals has established that for these purposes the amendment seeks damages which are an “additional consequence” of the tortious act. See Caffaro v. Trayna, 35 N.Y.2d 245 (1974).

Where counsel for the deceased plaintiff moves to substitute the personal representative, there may be issues of timeliness of the death claim as well as causal relationship between the death and the acts or omissions upon which the underlying claim is premised. Courts have ruled both ways on these two issues, but defense counsel who perceives prejudice to the defendant from the lack of notice of the death claim, its remoteness from the pre-existing liability issues, or the timeliness of its being interposed, is well advised to raise these issues in opposition to the motion to add the wrongful death cause of action. Cf., Gambles v. Davis, 32 A.D.3d 224 (2006). Defense counsel should be prepared to demonstrate, by expert affidavit if necessary, that the death of the particular plaintiff was not related to the previously claimed tortious behavior, that opportunities for investigation and discovery have been irretrievably lost, or that the amendment would otherwise work substantial prejudice to the defendant's case.

Death of a Defendant

The death of a defendant creates issues more frequently, simply because there are more parties on the defendants' side of most medical malpractice cases. This means that there is more to keep track of, and more likelihood that a tangential defendant may die without counsel learning of the death for some time. What occurs between the time of death and the time when it becomes apparent to the attorneys that a statutory stay is in effect may include depositions, court ordered discovery, and dispositive motions or appeals. Because the deceased party may not have been deposed, and the effect of CPLR §4519 may have made other deposition testimony inadmissible at trial, the cost in time and effort is not inconsequential, nor are the problems created.

Counsel for the plaintiff has no reliable way of determining the well-being of the defendants as the litigation proceeds over a course of years, as all defendants are represented by counsel and the attorneys are ethically bound by the Rules of Professional Conduct to limit their communications with opposing parties to those among counsel. In a highly mobile population where medical practitioners move repeatedly and live in urban settings where their surnames are not unique, deaths of parties to litigation go without notice for months or years. The law does not specifically require counsel for the defendants to monitor the viability of their clients or report their demise, but most defense counsel will report the death of a client to the court and all counsel.

Again the defense attorney has been divested of all authority to represent the client at the moment of death, and frequently the attorney has only known the defendant in a professional context.  Thus the attorney knows nothing about the survivors of the decedent or who the personal representative of the estate may be. As a result there are special term, trial, and appellate decisions dealing with situations where years have passed between the death of a defendant and the court's grappling with the difficulty which the death has imposed upon the pending litigation.

The procedure for the appointment of a personal representative and substituting the estate as a party is the same, regardless of whether the deceased party was a plaintiff or defendant. However, defense counsel has less incentive to commence the process because the status quo is generally more acceptable to the defendants. The usual procedure is for defense counsel to disclose that a defendant has died, at which time counsel for the plaintiff begins the task of identifying the personal representative and effecting the substitution.

Although CPLR §1021 suggests a four-month time limit for the substitution of the decedent's estate, in reality there are no specific time parameters to define timely substitution. The decisions are case specific with some courts finding that a two-year delay is too long (Sopcheck v. Long Island Jewish Hospital, 161 A.D.2d 577 (1990)) even after the Court of Appeals has indicated that a two-year delay is acceptable (Rosenfeld v. Hotel Corporation of America, 20 N.Y.2d 25 (1967)). The criteria examined include whether there is merit to the underlying claim, a reasonable excuse for the delay, and an absence of prejudice to the defendants. Alejandro v. North Tarrytown Realty, 129 A.D.3d 749 (2015). Prejudice to the defendant must be shown apart from the mere passage of time in moving to substitute the personal representative (Macomber v. Cipollina, 226 A.D.2d 435 (1996)) but in many cases that prejudice will accrue with extended delay, and the delay is most often charged to counsel for the plaintiff.

The natural response by defense counsel to the belated motion of counsel for the plaintiff to substitute the personal representative of the deceased defendant is a cross-motion to dismiss for failure to effect a timely substitution, as countenanced by CPLR §1021. Consider what occurs when defense counsel prevails on such a motion. Because there is no personal representative substituted for the deceased defendant, the Appellate Division will not hear an appeal by counsel for the plaintiff because it does not have the jurisdiction to do so. Timoner v. North Shore Internal Medicine, 125 A.D.2d 300 (1986).

Conclusion

The death of any party to a medical malpractice case during its pendency creates personal jurisdictional issues which require prompt attention in order to avoid the unnecessary expenditure of time and effort, or worse yet an unfortunate outcome.

John L.A. Lyddane is a partner and the chair of the medical malpractice defense group at Dorf & Nelson.