Short Answer

Yes, but how it helps with debts depends on the type of claim. In North Carolina, a personal representative may file (a) a wrongful death claim and/or (b) a survival medical malpractice claim. Wrongful death proceeds largely bypass the estate and generally cannot be used to pay most debts, while survival claim proceeds become estate assets that can pay creditors. Strict filing deadlines and a special medical review certification apply.

Understanding the Problem

In North Carolina, can the proposed administrator file a medical malpractice case against the hospital to help with the estate’s bills so the family doesn’t have to sell the son’s house? Here, the son died intestate owning a house and there is a large hospital bill that could force a sale.

Apply the Law

North Carolina allows two different paths when medical care allegedly caused death: a wrongful death claim and a survival claim. Wrongful death damages go to the statutory beneficiaries and, with limited exceptions for last-illness costs, do not pay general estate debts. By contrast, a survival claim (the decedent’s own claim that lived on after death) produces estate assets that are available to pay creditors. The personal representative (administrator) files these claims in Superior Court after receiving Letters of Administration from the Clerk of Superior Court. A wrongful death case generally must be filed within two years of death, and medical malpractice claims must meet both time limits and the Rule 9(j) pre-filing medical review certification.

Key Requirements

• Personal representative appointment: You must first qualify as administrator and receive Letters before you can sue on behalf of the estate.
• Choose the right claim(s): Wrongful death proceeds mostly bypass the estate; survival claims create estate assets that can pay debts.
• Medical review certification: Any medical malpractice complaint needs a Rule 9(j) certification confirming a qualified medical professional has reviewed the care and will testify to a breach.
• Deadlines: Wrongful death is generally two years from death; malpractice claims also face separate limitation and repose periods.
• Settlement and accounting: Court approval may be needed for wrongful death settlements; do not commingle wrongful death funds with estate assets and account for them separately.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-18-2 (Wrongful death) – Who may sue, what damages are allowed, and how proceeds are distributed.
• North Carolina Gen. Stat. § 28A-18-1 (Survival of actions) – Most tort claims survive death and become estate assets if recovered.
• North Carolina Gen. Stat. § 1A-1, Rule 9(j) (Civil Procedure) – Requires a pre-filing medical review certification for medical malpractice complaints.
• North Carolina Gen. Stat. § 1-15(c) – Sets medical malpractice limitation and repose periods.

Analysis

Apply the Rule to the Facts: As administrator, the mother may file both a wrongful death claim and a survival malpractice claim. A wrongful death recovery will not generally pay the estate’s hospital creditors beyond limited last-illness expenses, so it likely will not prevent a sale solely to satisfy those debts. A survival recovery, however, would be an estate asset that can be used to pay hospital bills, taxes, and administration costs, potentially reducing pressure to sell the house. She must act quickly to meet the two-year wrongful death deadline and the malpractice repose rules, and secure the required Rule 9(j) certification before filing.

Process & Timing

1. Who files: The administrator. Where: First qualify with the Clerk of Superior Court in the county of domicile, then file the lawsuit in Superior Court. What: Apply for Letters using AOC-E-202 (Letters of Administration); publish Notice to Creditors; file a complaint alleging wrongful death and/or survival malpractice with Rule 9(j) certification. When: File wrongful death within two years of death and comply with malpractice limitation/repose periods; publish creditor notice promptly to start the claims bar date.
2. Litigation proceeds in Superior Court (pleadings, discovery, motions). Wrongful death settlements may require court approval before distribution; keep wrongful death proceeds separate and account for permitted payments (litigation expenses, fees, limited last-illness costs) before distribution to beneficiaries.
3. If there is no sufficient recovery and cash is needed, petition the Clerk in a special proceeding to sell real property to create assets for debts; if approved and sold, apply proceeds to claims in the statutory priority and seek approval of final account.

Exceptions & Pitfalls

• Wrongful death limits: Proceeds are not estate assets and are generally shielded from creditors, except for funeral and limited hospital/medical expenses of the last injury; Medicare and certain public benefits may have reimbursement rights beyond those limits.
• Certification trap: A malpractice complaint without a proper Rule 9(j) certification risks dismissal; secure the medical review before filing.
• Commingling: Do not mix wrongful death funds with estate assets; keep a separate accounting and pay only the expenses allowed by statute from those funds.
• Settlement approval: Court approval may be required for wrongful death settlements before distribution; follow local practice.
• Creditor bar dates: Publish and mail Notice to Creditors; late claims are barred, which can reduce overall debt pressure on limited assets.
• Real estate sales: Selling the house to pay debts requires a special proceeding and notice to heirs; waivers from family members do not cut off creditor rights.

Talk to a Probate Attorney

If you’re dealing with possible medical malpractice and mounting estate bills, our firm can help you evaluate claim options, timelines, and how any recovery affects creditors. Call us today at .

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.