Pro se Complaints For Wrongful Death or Survival Damages: Void or Amendable?
Medical malpractice cases involving allegations of wrongful death and survival damages may give rise to the most serious claims any professional will face in their career. These cases are typically brought by experienced lawyers, and allegations are established by expert witnesses in the appropriate field. But what happens when the next of kin tries to prosecute one of these claims pro se, i.e., without the assistance of counsel? In many jurisdictions, such an attempt constitutes the unauthorized practice of law and the complaint is void. In other jurisdictions, the pleading is defective but can be properly amended if signed by a licensed attorney. Depending on the applicable statute of limitations as well as other potential defenses, the legal significance to the defendant cannot be understated.
In many jurisdictions, courts have held that a pro se litigant is entitled to represent herself in her own personal interest, but a non-attorney cannot represent the interests of another person or class of people. Since claims sounding in wrongful death or survival must, by definition, be brought in a representative capacity, bringing them pro se amounts to the unauthorized practice of law. In some states, a pleading signed by a person who is not licensed to practice law is a nullity. In other words, the pleading itself is void ab initio, and it does nothing to toll the statute of limitations or protect the estate’s right to recover damages. This is commonly known as “the nullity rule.” In other states, the pleading is subject to being stricken, but is considered an amendable defect.
The Illinois Appellate Court provides an excellent analysis of the “nullity rule” in Ratcliffe v. Apantaku, 318 Ill. App. 3d 621 (1st Dist. 2000). In Ratcliffe, the plaintiff – a non-lawyer and the daughter of the decedent – filed a medical malpractice complaint against numerous defendants pro se, alleging causes of action under the Illinois Wrongful Death Act and Illinois Survival Act. The defendants moved to dismiss the complaint on a number of grounds. The appellate court considered, among other issues, whether it was proper for a pro se litigant to represent a decedent’s estate in a wrongful death or survival action. The appellate court found that it was improper, even though the pro se litigant had been appointed by the trial court as the administrator of the decedent’s estate.
The appellate court relied upon another Illinois appellate court’s decision in Blue v. People of the State of Illinois, 223 Ill. App. 3d 594 (2d Dist. 1992). In Blue, the court held that “[a] pleading signed by a person who is not licensed to practice law in this State is a nullity even if a duly licensed attorney subsequently appears in court. Where one not licensed to practice law has instituted legal proceedings on behalf of another, the suit should be dismissed; if the suit has proceeded to judgment, the judgment is void and will be reversed.” Blue, 223 Ill. App. 3d at 596.
The court also explained that medical malpractice and wrongful death cases are complex matters that require the expertise of an attorney, and a non-lawyer cannot properly represent the interests of others (i.e., heirs) because such representation amounts to the unauthorized and illegal practice of law by a non-lawyer.
A number of states take the same approach as Illinois in strictly applying the nullity rule, including Arkansas, Nebraska, and Virginia.
Some states however, have found that while these pro se complaints are technically improper, they represent amendable defects. For example, South Carolina, “like other jurisdictions, limits the practice of law to licensed attorneys.” Brown v. Coe, 365 S.C. 137, 139 (2005). However, the South Carolina Supreme Court has permitted amendment of these defective pleadings, meaning the case survives and continues against the defendants. Other states that have permitted amendment of the defect include Missouri, New Jersey and Kentucky.
It seems that the states that apply the nullity rule without permitting amendments to cure the defect see the nullity rule as a deterrent against improper pro se representation. The states that permit parties to cure these defective pleadings by amendment allow it so as to protect the interests of the individuals represented by the pro se plaintiff, thus refusing to penalize them for the unauthorized practice of law by another person.
However, even in states that follow the nullity rule fairly strictly and do not permit curing the defect by amended pleadings when the statute of limitations has expired, there are examples where reviewing courts have wavered from that prohibition in fairly obscure or convoluted factual scenarios. See Janiczek v. Dover Management Co., 134 Ill. App. 3d 543 (1st Dist. 1985) (reinstating complaint filed by disbarred lawyer on behalf of former client), and Pratt-Holdampf v. Trinity Medical Ctr., 338 Ill. App. 3d 1079 (3d Dist. 2003) (reinstating complaint filed pro se, but at the direction of retained counsel who filed an appearance shortly after complaint filed). In fact, in June 2017, the appellate court in the Chicago-based first district issued a terse opinion overruling the circuit court’s dismissal of a pro se action based on the nullity rule. Holloway v. Chicago Heart & Vascular Consultants, Ltd., 2017 IL App (1st) 160315. The appellate court found that because it appeared that the pro se plaintiff filed suit only to avoid the impact of the statute of limitations while she sought counsel, the nullity rule should not have barred her claim, irrespective of the fact that she had sought counsel and been turned down on a number of occasions over many months. The nullity rule is not absolute, but cases like Janiczek and Holloway should be the exception, not the rule.
Defense counsel and anyone engaged in the defense of professional liability claims must be aware of the existence of the nullity rule as a defense to pro se claims. A careful review of your jurisdiction’s adherence to the nullity rule and any departures from it is necessary to exhaust all possible defenses to the claim.