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CalAttorney2, Attorney
Category: Legal
Satisfied Customers: 10244
Experience:  Civil litigation attorney for individuals and businesses.
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I lost my baby due to a full term stillbirth. Many medical

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I lost my baby due to a full term stillbirth. Many medical professionals advise me to sue due to gross negligence. I have had 3 attorneys look at my records & have declined to pursue the case further due to "loop holes". There is a 2 year statute of limitations in Illinois & in November I will have a year left to file if I can. I am however, planning on filing chapter 7 in the next few weeks. Since im not sure if I can pursue my malpractice case & win...or if I will risk hearing another "no" would this situation affect my bankruptcy? Or will it at all? I know I have to disclose all assets & "potential" assets but I am not sure this falls under either since I've been told no already & I am not sure if I'm going to continue to try. Please advise...thank you.

William B. Esq. :

Dear Customer, I am very sorry to learn of this unfortunate event. Your potential medical malpractice claim counts as an "asset" when you fill out your schedules. The value is unknown, but the claim is still valid and you must disclose it when you file. (It is unlikely that a trustee will go beyond simply asking you about the basis for the claim and the efforts you have taken to possibly pursue it, but it must be disclosed).

Customer: Thank you...that is what I thought. I was told if I had a good settlement they could come in and take it....but they could only take what I declared as debt. Not sure though...
William B. Esq. :

You just disclose the claim, the claim becomes part of the bankruptcy estate and the trustee can choose whether or not he or she wishes to pursue it on behalf of the bankruptcy estate.

Customer: Does that mean I can no longer pursue it on my own then? If I were to file for let's say $200,000 but my settlement ended up being $500,000...I would keep the remainder after my debts were paid from it though right?
William B. Esq. :

If your debt totals $200,000.00 and your claim settles at, or you get a judgment for, $500,000.00 (either through bankruptcy or independently), here is how it would work.

(1) If the bankruptcy trustee pursued the claim (you filed bankruptcy, disclosed the claim, and the trustee believed it was worth hiring a lawyer and pursuing the claim), the trustee would first pay the attorney, then pay off all of your debt, you would then get the remainder.

(2) If you pursue your claim now, get the judgment, and then deal with your debt, the same result will happen, minus some of the trustee's fees for management (you will end up with a little more) - You will get a judgment, the attorney will get paid, you will need to pay your debts, and then you will keep the remainder; finally,

(3) If you file bankruptcy, disclose the claim, and the trustee decides not to pursue it himself because it does not seem worth the time and money, the claim will revert to you, you can pursue it yourself, and if you win the $500,000.00, the only expense you will have to deduct is the attorney's fees as all of your debt has been taken out through the bankruptcy. (This assumes no bankruptcy creditors object).

Customer: Thank you for taking the extra time to explain the "what-ifs". This gives me a better idea of what to do with a bunch of bad situations. I really appreciate it. Have a good 4th. Take care.
William B. Esq. :

Thank you very much, and you do the same.

I hope that my answer was of assistance to you. My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Please remember to rate my service once you have all the information you need. Thank you for your business!

Customer: Perfectly & thoroughly addressed. :-)
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