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Can a Pro Se Litigant File a Medical Malpractice Claim as Executor of the Estate?

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The Court of Appeals of Nebraska was faced with a case involving plain error and a pro se litigant filing a medical negligence suit as the executor of the deceased’s estate in Assad v. Sidney Regional Medical Center (No. A-16-949, May, 2017).

In February 2014, Emil Assad (“Assad”) took his wife, Kathy Assad, to the emergency room because she was not feeling well. She was prescribed medication and sent home. She got worse, went back to the hospital two days later. She remained hospitalized until her death, five weeks on.

Assad filed suit, pro se, in February 2016. He claimed that the treating physician’s assistant, Tracy Ray (“Ray”), and the medical center where Kathy was treated, Sidney Regional Medical Center (“Sidney Regional”), were negligent in their treatment of her which contributed to her death. The defendants moved for summary judgment. Assad filed a motion for the trial judge to recuse himself and a motion to continue the summary judgment hearing. The court denied Assad’s motions and granted the defendants’ motion for summary judgment.

Assad appealed on the grounds that the district court erred in denying his motion to recuse and his motion for continuance and granted the motion for summary judgment filed by the defendants.

Instead of reviewing Assad’s claims on appeal, the Court of Appeals of Nebraska reviewed plain error. The Court of Appeals asserts that plain error exists where there is an error evident from the record, but not dealt with at trial. The plain error prejudicially affects a right of a litigant, and to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. In this case, the Court of Appeals noted that Assad’s initial negligence claim was filed “Individually and as Special Administrator of the Estate of Kathy Assad, Deceased.” Assad is not a licensed attorney. Although he filed the complaint as special administrator of the estate of his late wife, the filing of the complaint as special administrator still constitutes the unauthorized practice of law.

Assad’s complaint is a nullity and allowing him to represent the estate in this matter constituted plain error. The Court of Appeals therefore vacated the order of the district court which entered summary judgment in favor of the defendants, and remanded the cause with directions to the court to dismiss the complaint entirely.

The Metier Law Firm is committed to assisting people with personal injury claims throughout Colorado, Wyoming and Nebraska, and we frequently serve as co-counsel to law firms nationwide. Tom Metier recently secured the largest personal injury verdict in Colorado.