What to Do After a Medical Malpractice Death

You're reading this because someone you loved went to the hospital expecting to get better, and they didn't come home. Something went wrong — a surgical complication that shouldn't have happened, a medication error, a diagnosis that was missed — and now you're trying to figure out what to do while barely holding yourself together.

The hardest part of this situation is that the most important decisions happen in the first few days, when you're least capable of making them. Here's what actually matters, in the order it matters.

The First 24 Hours

Do not authorize cremation or embalming. This is the single most important instruction in the first day. Cremation permanently destroys all physical evidence. Embalming introduces chemicals that compromise toxicology results and alter tissue pathology. Tell the funeral home to place the body in refrigerated storage below 40°F and to hold all preparation until you say otherwise.

Confirm the coroner or medical examiner was notified. State laws require hospitals to report unexpected deaths and suspected therapeutic misadventures to the county coroner or medical examiner. Ask the hospital directly whether they've made the report. If they haven't — or if they classified the death as "natural" — you can contact the coroner's office yourself and request an investigation.

Start writing down everything you remember. Names of doctors, nurses, and staff who were present. What they told you. What you observed about your family member's condition before the event. Timestamps. Direct quotes if you can recall them. Memory degrades fast under traumatic stress, and these contemporaneous notes become valuable evidence later.

The First Week

Send an evidence preservation letter. This is a formal written request to the hospital's risk management department asking it to preserve records, electronic health record metadata, communication logs, medical devices, and physical evidence. It documents notice of a potential claim, but later loss or alteration is not automatically spoliation; preservation duties and legal consequences depend on the facts and applicable law.

Request the complete medical record. Under HIPAA, the estate's personal representative (executor, administrator, or person authorized by state law) generally has a right to the deceased's designated record set. Submit the request in writing, specifying clinical notes, physician orders, nursing assessments, lab results, operative reports, and billing records. The covered entity generally has 30 days to act and may take one additional 30-day period if it gives written notice.

Consider a private autopsy. If the coroner declines jurisdiction — which happens frequently when a hospital classifies a death as natural — a private forensic autopsy may provide an independent postmortem examination. Ask providers for a case-specific quote; price depends on location, transportation, complexity, and testing. Arrange it promptly, ideally within 48 to 72 hours if practicable; if the body is refrigerated, ask the pathologist whether a later examination may still be useful.

The First Month

Consult a medical malpractice attorney. Look for an attorney who specializes in medical malpractice wrongful death — not general personal injury. Most work on contingency, meaning they don't charge upfront. The attorney will arrange an independent medical expert review of the records, which many states require (as a Certificate of Merit) before a malpractice lawsuit can be filed.

Audit the death certificate. Death certificates in hospital deaths may list a mechanism such as "cardiopulmonary arrest" without identifying the underlying condition. If the listed cause of death is inaccurate, an amendment may be possible under state procedure, often with action by the certifying physician or medical examiner and supporting medical evidence.

Request a billing hold. Hospital billing departments operate independently of any malpractice investigation. Bills may continue through billing or collection processes while negligence is being investigated. A formal letter requesting a billing hold or a Letter of Protection (drafted by your attorney) may help prevent credit damage while the case is evaluated.

What Not to Do

Don't sign anything the hospital gives you without having it reviewed by your own attorney. Risk management teams may present documents framed as routine — incident reports, clinical autopsy consents, satisfaction surveys — that contain language limiting the hospital's liability.

Don't discuss the case on social media. Posts about the care or claim may be requested in discovery and used to assess consistency with later testimony, so avoid sharing case details publicly.

Don't accept an early settlement offer without independent legal review. Hospitals operating under CANDOR (Communication and Optimal Resolution) or CARe programs may approach you with an apology and a financial offer. These programs are designed to resolve claims quickly and cheaply. The offer may exclude long-term damages entirely.

For a structured triage protocol that covers each of these steps in detail — including templates for preservation letters, HIPAA requests, and death certificate challenges — the After a Medical Malpractice Death guide provides the complete framework.