QUESTION
Can our case be discharged by the bankruptcy court?
Asked on Mar 30th, 2014 on Bankruptcy - California
More details to this question:
We have filed an appeal for the death of our mother against a doctor and hospital. The doctor has filed bankruptcy and our case has been issued a "Stay".
9 ANSWERS
Complex Litigation Attorney serving Costa Mesa, CA
at
Thomas Vogele & Associates, APC
Update Your Profile
Your question is somewhat confusing. If you filed a complaint against a doctor and hospital for medical malpractice and that case had not been tried when the doctor filed for bankruptcy, you have two options. You can file a motion for relief from the automatic bankruptcy stay to allow the case to go forward. Alternatively, you can ask the trial court to allow you to proceed to trial against the hospital. If the case has already gone to trial and you won, the proper course of action is to file an adversary complaint in the doctor's bankruptcy and ask the court to deem your judgment non-dischargeable. In any event, you need to contact a bankruptcy attorney immediately and get their advice.
Answered on Apr 02nd, 2014 at 6:34 PM
You will want to see an experienced bankruptcy creditor's attorney for help in partially lifting (removing) the stay so you can proceed. Often, the doctor's malpractice insurance will be responsible for paying the claim so if you are willing to assure the doctor that you won't pursue him/her personally, the doctor may even agree to this request.
Answered on Apr 02nd, 2014 at 6:34 PM
Commercial & Bankruptcy Law Attorney serving Powell, OH
at
Ronald K. Nims
Update Your Profile
A bankruptcy will release the doctor from any liability for the death of your mother, however, it will not release the hospital and it will not release the doctor's malpractice insurance company or the hospital. All hospitals require doctors who practice at the hospital to have malpractice insurance. The purpose of the stay is to prevent wasteful litigation, when the defendant will be release from liability - however in this case both the hospital and the doctor's malpractice insurance company will not be released from liability. The bankruptcy court should grant you a release from stay, so your lawsuit can move forward.
Answered on Apr 02nd, 2014 at 6:33 PM
2 Awards
Some debts are not dischargeable in bankruptcy. 11 U.S.C. 523(a)(5) prevents the discharge of a debt incurred for willful or malicious injury to another person or persons property. There is no negligent wrongful death nondischargeability provision under the Bankruptcy Code, so you'll have to prove the doctor's actions were willful or malicious
Answered on Apr 02nd, 2014 at 6:33 PM
Yes, if they case alleges negligence by the doctor, it can be discharged/stayed as to him. Your case against the hospital can continue, but proving negligence by the hospital will be more difficult.
Answered on Apr 01st, 2014 at 6:22 PM
It depends. Look at 11 USC 523 for a list of debts which may not be dischargeable. There may be other liable parties involved as well. Also, if the doctor has malpractice insurance, you may still be able to assert your claims against his or her insurance company. Speak to a lawyer who specializes in personal injury claims. Do so quickly since there are a number of statue of limitations that could bar your claims if you do not act with all due speed.
Answered on Apr 01st, 2014 at 6:22 PM
It is likely that the doctor will be able to discharge any judgment you get, but the hospital cannot dodge you that easily. I would recommend dismissing the case as to the doctor so your appeal can go forward against the hospital only. Sorry for your loss!
Answered on Apr 01st, 2014 at 6:19 PM
Appellate Attorney serving Grosse Pointe Farms, MI
at
Musilli Brennan Associates, PLLC
Update Your Profile
It depends, but commonly yes. Seek counsel from your lawyer.
Answered on Apr 01st, 2014 at 6:18 PM
Bankruptcy Attorney serving Walnut Creek, CA
at
Alan E. Ramos Law Offices
Update Your Profile
You need to see an attorney. If the cause of action was for negligence, the debt will most likely be dischargeable in the bankruptcy. There are certain circumstances in which a debt is not dischargeable, but you should have counsel review your case and you should do it as soon as possible, as the time limits for bringing a non-dischargeability action are quite short.
Answered on Apr 01st, 2014 at 6:17 PM