Published September 10, 2019 · Settlements

When a loved one dies in a hospital and the care is later called into question, families are left with grief and with hard questions. Who is responsible? What happens to a lawsuit while a criminal case is pending? If the hospital offers to settle, what happens next? Two settlements reported in Columbus last month touch on each of those questions.

What was reported

On Monday, Aug. 26, 2019, settlement papers were filed in two wrongful death lawsuits against Mount Carmel Health System, WSYX reported. According to the Associated Press, Mount Carmel agreed to pay $4.65 million to the family of Donald McClung, 58, and $4.35 million to the family of Rebecca Walls, 75, about $9 million combined. Both were patients at Mount Carmel West in Columbus. The lawsuits allege that drug doses ordered by Dr. William Husel caused or hastened their deaths.

The AP described these as the largest known payouts so far in the related lawsuits and reported that about 20 lawsuits were still pending. The settlements still needed a judge's approval. WSYX reported that a hearing in one case was expected in October, once all the heirs were notified. The AP reported that the families and their lawyers were not commenting, citing confidentiality restrictions. A hospital spokeswoman told Reuters that Mount Carmel hoped the settlements would bring some closure and comfort to the families.

Dr. Husel has been charged with murder in the deaths of 25 patients and has pleaded not guilty. A defense lawyer has said he was providing comfort care and was not trying to kill anyone. These are accusations that no court has decided. The AP also reported that he was not criminally charged in Mr. McClung's death.

Why a court must approve a wrongful death settlement

In Ohio, a wrongful death claim does not belong to any one relative. Under R.C. 2125.02(A)(1), the case is brought in the name of the personal representative of the person who died (the executor or administrator of the estate). It is brought for the exclusive benefit of the surviving spouse, the children, and the parents, who are presumed to have suffered damages, and of the other next of kin. Our overview of Ohio wrongful death law explains these roles.

Because the claim belongs to the family as a group, the personal representative cannot simply sign a release. R.C. 2125.02(C) allows the personal representative to settle, before or after a lawsuit is filed, only "with the consent of the court making the appointment." For an Ohio estate, that is the probate court that appointed the personal representative.

The Supreme Court of Ohio's Rules of Superintendence describe how that approval works in Rule 70:

  • An application with the facts. The application states the facts and how much of the settlement goes to the wrongful death claim and how much, if any, to the survival claim. The survival claim is the claim the person who died could have brought for his or her own injuries. The application must also show the proposed distribution of the net wrongful death proceeds. The rule identifies this application as Standard Probate Form 14.0.
  • Notice to the family. The fiduciary must give written notice of the hearing, with a copy of the application, to every interested person who has not waived notice.
  • The court keeps control. Even when everyone signs waivers and consents, the court "shall retain jurisdiction over the settlement, allocation, and distribution of the claims."
  • Fees are reviewed. The application must state any arrangements for counsel fees, and those fees are subject to the court's approval.

That is why a reported settlement is not final on the day it is announced. Notice protects relatives who may not be part of day-to-day decisions, such as an adult child who lives in another state. The hearing gives the judge the chance to review the settlement and the proposed division among family members. If relatives disagree about who should serve as personal representative in the first place, our post on administrator disputes may help.

What a settlement amount does and does not mean

A headline number is not what a family takes home. The AP reported that in Mount Carmel's earlier settlements, families typically received two-thirds or less, with the rest going to lawyers and court costs. Other expenses and claims against the recovery may also have to be paid, and what remains of the wrongful death proceeds is divided among the beneficiaries as the court approves.

In a wrongful death case, Ohio law allows compensation for the loss of support, services, and society of the person who died, the loss of prospective inheritance, and the mental anguish of the surviving spouse, dependent children, parents, or next of kin, under R.C. 2125.02(B). A settlement is a negotiated figure that weighs those losses against the risks and delays of trial. Our page on wrongful death compensation explains these categories.

A settlement resolves a claim. It is not a court's finding about what happened, and it does not decide any criminal charge.

A civil case can move forward while a criminal case is pending

Families are often surprised that a civil lawsuit and a criminal prosecution can go on at the same time. They are separate cases with different purposes. The criminal case is brought by the state and asks whether a person committed a crime. The wrongful death case is brought by the personal representative and asks whether someone is legally responsible for the death and what the family lost.

The Mount Carmel cases show how this works. The lawsuits were brought against the hospital system, while the criminal charges were brought against the doctor. The civil cases reached settlement while the criminal case was still pending. And according to the AP, Mr. McClung's family reached its settlement even though no criminal charge had been filed in his death.

The timing matters for every family. Under R.C. 2125.02(D)(1), a wrongful death action generally must be filed within two years after the death, and that rule does not wait for a criminal case to finish. When a death follows medical care, related claims can carry even shorter deadlines, as we explained in our post on Ohio's new medical claims law. Our page on medical malpractice deaths explains how these cases are evaluated.

Questions to ask if a settlement is offered

  • How will the money be allocated between the wrongful death claim and the survival claim?
  • How will the wrongful death proceeds be divided among the spouse, children, parents, and other next of kin?
  • What fees, costs, and other claims will come out of the recovery before distribution?
  • Who will receive notice of the probate hearing, and when will it be held?

This article is general information about Ohio law, not legal advice about your situation. Reading it does not create an attorney-client relationship. Deadlines and rules change; talk to a lawyer about your family's situation.