How Does Wrongful Death Act Discriminate?

The difference of a single day can mean a lot in a medical malpractice case.

When someone dies in Florida as a result of medical malpractice, the types of damages that may be recovered, and also who has a right to recover damages, is strictly controlled by the Florida Wrongful Death Act.

Here is what is allowed:

1) A living spouse may recover for his or her own intangible damages, such as mental pain and suffering and loss of companionship.

2) A living spouse may recover the value of lost services (usually of a household nature), and lost economic support if the decedent was employed.

3) Any other blood relative wholly or partly dependant on the deceased person for support or services may recover for the value of those lost services or support.  This usually means children, but also includes adopted children, and would even include brothers, sisters, grandparents, grandchildren and any other blood relatives if they were wholly or partly dependant on the deceased person for support or services.

4) Living children of the deceased person, if under the age of 25 at the time of death, may also recover intangible damages for mental pain and suffering and loss of parental guidance and companionship.

5) If the deceased person was employed and you can fairly predict (usually with the help of an economist) that they would have accumulated more assets over their remaining work-life expectancy, then the estate of the deceased person may also recover for those lost assets.  These damages are called “lost net accumulations of the estate”.

6) The estate can also usually recover for any medical bills actually caused by the negligence.

7) The estate or family may recover for the funeral expenses, depending on who paid them.

Now here is the problem.  What happens if the hospital or doctor’s malpractice causes the death of a 60-year-old retired widow?  Her children are in their 30’s or 40’s, and they are devastated by their mother’s untimely and unnecessary death.  Unfortunately, under Florida’s discriminatory Wrongful Death Act, since there is no spouse and children under 25, and no other dependent relatives, the only damages from the above list that can be recovered are the funeral bill (7 above) and medical bills, (6 above) caused by the negligence.  If Medicare, Medicaid, or private insurance paid the medical bills then those agencies must be paid back out of the recovery.  If there are medical bills that have not yet been paid, then those must be paid out of any recovery.  This means that in reality, the family is only able to bring a medical malpractice lawsuit solely for to recover the funeral bill, which usually ranges from $3,000 to $12,000.  Since it often costs $40,000 to $100,000 in expenses (for expert witnesses, court reporters etc.) to bring a malpractice case, such a suit makes no economic sense and would end up costing more than could possibly be recovered.

Another example of the statute’s discriminatory action is with the death of anyone over age 24 who is disabled and unmarried.  If a patient like this is killed by the negligence of a doctor or hospital in Florida, there will probably be no viable suit for damages.  The patient may have parents or brothers and sisters, but all that may normally be recovered in such a medical malpractice suit is the funeral bill.  Again, a lawsuit like that would simply not be economically justified.  Even if the patient was not disabled, but instead had a steady job, it would need to be a fairly well-paying job with a good future outlook before the estate would have much of a claim for lost net accumulations (see paragraph 5 above).

Of course, Florida’s hospitals are full of unmarried adults with no children under 25, and full of retired people without spouses. Young people are putting off marriage longer than they used to, and we have a huge population of elderly people who have lost a spouse, divorced, or never married.  Why does Florida law allow them to be killed by medical negligence without recourse?  The answer is simple.  It’s because the medical, hospital, and insurance industries in Florida are very politically powerful. They lobby and they donate and they are given what they want in the name of “tort reform” and the false battle cry of eliminating frivolous lawsuits.  As with most so-called “tort reforms,” such legislation is not really aimed at “frivolous” cases, but at legitimate ones.

Keep in mind that these discriminatory provisions only apply to medical malpractice cases and not other types of deaths caused by negligence. For example, if that same 60-year-old described above were killed by a negligent driver, her children even though over 24 years old would be allowed to bring a claim to recover for their emotional damages.  And the parents of that 25-year-old unmarried person could recover for their emotional damages if their child was run down by a motorist.   You might think of it this way:  if someone like you were to accidentally cause the death of someone in these socioeconomic categories, you could be held responsible for paying the family of the deceased person for their emotional damages. The statute elevates only doctors, hospitals, and other healthcare providers to this exalted status of having virtual immunity for negligently killing some of the most defenseless members of our society, i.e., the elderly, the disabled, and the underemployed.

Before you decide not to pursue a case because of these restrictions, be sure to discuss your possible case with a malpractice lawyer.  In some very rare factual situations there may be a way around some of these damage limitations.