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Unfair and Illogical: Florida's Wrongful Death Medical Malpractice Law

I took a call last week that I have taken hundreds of times over the last ten years. The man explained that he had contacted "no less than ten other law firms" in Jacksonville and kept getting turned down. He thought he'd try one more time with a Tallahassee personal injury law firm and he reached me. I could tell from his voice he was about my age and he was calling about his father's death which he suspected was from medical malpractice. I asked how old the dad was, how old his children were and whether the dad was married at the time of his death. The caller immediately said, "Oh, so it's true then. I don't have a case."

What the caller had learned from speaking with so many personal injury attorneys was that the legislature created a special statute dealing with wrongful death when it is caused by medical negligence (malpractice.) In his case, his father was widowed and all of his children were over the age of 25. That meant no one qualified as a "survivor" as defined by the law. Although he left adult children who loved him dearly and will miss him terribly, because they are over the age of 25, they cannot recover for the loss of their father.

Florida law is intended to compensate the living, not the dead, so there is no recovery for the deceased's pain and suffering and foreshortened life. Prior to death, many people suffer for months in hospitals, on machines, in intensive care, enduring multiple tests and procedures. The law allows no recovery for their suffering. There is no recovery for the deceased's foreshortened life, even if, but for the malpractice, the person would have lived another 50-60 years.

Those who do have viable claims are called "survivors" and the law narrowly defines them. In a medical malpractice wrongful death case, if the decedent was over the age of 25, unmarried with no minor children, there would be no qualifying survivors to recover. If the decedent was under 25, the parents and any of decedent's children would have recovery rights. If the decedent was over 25, the parents would not have recovery rights. Only a spouse and any children of the deceased would qualify as survivors. Siblings, fiancés, partners, grandchildren, aunts and uncles - none of them have rights to recover for the medical malpractice wrongful death of their loved one. With so many young people waiting to marry and have children and many older people widowed or divorced, often there are no qualifying survivors to recover in these lawsuit.

The estate could recover medical bills and funeral expenses, but such limited recovery would not make a malpractice lawsuit financially feasible. There can be a recovery for the person's lost wages and net accumulations in some instances. However, the amount of projected earnings would have also been consumed in whole or in part by the deceased and only what would have been left over is available to recovery in a lawsuit. Many people live paycheck to paycheck and have established a very poor or minimal savings history in their lives.

Interestingly, I had a malpractice case where the decedent was married and had four adult children at the time of her death. Yet only the husband and the 23-year-old son qualified as survivors. The older three children had no recovery rights. It's understandable that there might be a bar to recovering lost financial support because most children are no longer financially dependent on their parents after age 25. But this law also prohibits recovery to older children for the loss of companionship and guidance and for the pain and suffering of losing their parent. Only children 25 and under can recover for those damages in a medical malpractice wrongful death action. The older siblings who had longer relationships with the parent have difficulty accepting this illogical, unfair law.

If you have lost a loved one through wrongful death, contact Fasig Brooks to learn what your recovery rights are under this law. Call (850) 222-3232 or visit us online at www.fasigbrooks.com