Yes, but while the wrongful death claim is brought by the surviving relatives (and the CA statutes set out the order to determine which relatives may bring the claim) you still have to prove that the death was caused by the malpractice. The more time that elapses between the malpractice event and the death, the harder that becomes.
For example, if she had the cancer at the time of the malpractice and cancer is ultimately determined to be her cause of death, several challenges arise for you. First, would the outcome have been any different had the cancer been discovered earlier? If the answer is no, then there is nothing to get from the wrongful death because the alleged malpractice wasn't the cause of her death. If the answer is yes, then the challenge is determining how much longer she would lived had the cancer been detected earlier. There has be evidence to support the claim of how much longer she'd have lived; courts do not award damages based on mere speculation. Your claim to damages for support would be limited to the support you lost during that extra period of time, and in CA wrongful death claims based on malpractice are subject to the same caps as for a malpractice claim. The fact that her only income was Social Security suggests she isn't providing you much, if any, cash support. So how are you coming up with the idea that the wrongful death award would be huge?
If she should happen to die from something else, like a heart attack, that is not connected to the cancer then there will be no wrongful claim to make at all. In that case the malpractice had no impact on how long she lived; the heart attack (or whatever non cancer cause of death) would have occurred regardless of the alleged malpractice.
Let's see...If she passes due to the cancer, once confirmed by autopsy (which is the best thing to do, and I certainly intend on ordering one whenever she passes because that will document all the organs affected), I will definitely consult a lawyer. I would be extremely foolish not to have an autopsy performed in this case.
"you still have to prove that the death was caused by the malpractice. The more time that elapses between the malpractice event and the death, the harder that becomes."
I have an over 50% chance of proving it, which is all that's needed (preponderance of the evidence). Fact is the CT scan in 2022 should have been interpreted as possible malignant cancer, and if this was interpreted this way, more scans would have been done, the surgery would have been done differently (removing the gland *intact* instead of chopping it up within the body, which spread the cancer and qualifies as a botched surgery), and post-surgery follow-ups would have been different as well. They completely ignored the fact that this was *not* benign, even though they kept saying it was.
As for your second sentence about more time elapsing, I don't see how that makes a difference once death occurs. There are plenty of cases out there (successful ones) where the family doesn't detect the malpractice after a year or two. That's when the SOL kicks in, after discovery. And the malpractice they discovered could have occurred 10 years ago. They still brought the suit and won. Furthermore, you can petition the judge to modify the SOL depending on the case. So I don't understand why time elapsing between malpractice and death makes any difference.
"First, would the outcome have been any different had the cancer been discovered earlier?"
Absolutely. She could have received chemo and radiation early, which would have extended her life. The cancer was in the very beginning stages after all. She also would not have gotten 10 centimeter soft tissue tumor in her leg, another mass in her other adrenal gland, enlarged lymph nodes, etc. And therefore, she would not have had surgery on her leg to remove it (which was, in essence, a totally unnecessary surgery had the cancer been eradicated early). It's really this obvious and common sense.
I hope she doesn't pass away, but I am well-armed in case she does. I already have one lawsuit underway for wrongful termination and fraud regarding my previous employer, which will be very successful according to my lawyer. I wouldn't doubt that a med mal suit will be equally successful if such an event happens.
I will say this, however: IF my employment lawsuit goes nowhere by some weird chance, IF my mother passes away, and IF nothing transpires from a med mal suit, I will have no choice but to seek unbelievable personal Justice against that surgeon and make national headlines. Let's just put it that way. My source of support would then be gone, so I wouldn't mind at all spending the next half of my life in jail. As long as I get Justice for my mother in any way, shape, or form if such a hypothetical scenario arises, I would be extremely ecstatic. I have no family of my own anyway, so nobody else would care. Let's see how things go! Very exciting things ahead as I am well embedded in my mid-life crisis!
