Important Change to Wrongful Death Act Cases

In this underlying products liability case, a woman married a Navy veteran after he contracted mesothelioma but shortly before he passed away from the illness. The widow then sought damages under the Florida Wrongful Death Act against the company that made the asbestos that caused the man’s cancer. The Florida Supreme Court decided that the old rule, which required a couple to be married before the injury happened (in this case contracting mesothelioma) to claim compensation if he later dies, does not apply. Instead, what matters is that she was married to him at the time of his death.

How will this new ruling impact Florida medical malpractice cases? Malpractice cases involving the death of the patient are also controlled by the Florida Wrongful Death Act. Most malpractice cases involving death of the patient involve circumstances where the patient dies at the exact time of the malpractice, or shortly thereafter, so an interim marriage would be unlikely to occur. But one type of case that might be impacted would be the class of cases arising from the failure to timely diagnose cancer. If that misdiagnosis allows the cancer to progress from curable to incurable, eventually causing death, there may be time for a marriage to occur after the malpractice but before the death of the patient. The Supreme Court noted that a jury will normally be allowed to consider whether a spouse’s conduct in marrying was legitimate or only an attempt to marry into a claim for damages. Stay tuned.