How Does Wrongful Death Act Discriminate?
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 he would have accumulated more assets over his or her 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 widow who was retired? Her children are in their 30 s or 40 s, and they are devastated by their mother s untimely unnecessary death. Unfortunately, under Florida s discriminatory Wrongful Death Act, since there is no spouse and there are no children under 25, and no other dependent relatives, then the only damages from the above list that are recoverable 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 the medical bills remain unpaid, then the bills are required to be paid out of the recovery. This means the family is in reality only able to bring a medical malpractice law suit solely for the purpose of recovering the funeral bill, which may often range from $3,000 to 12,000. Since it often costs $40,000 to $100,000 in expenses (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 would be with the death of anyone over age 24 who is disabled and unmarried. If the patient 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 a medical malpractice for such a suit is the funeral bill. Again, such a suit 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 good 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 elderly population 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 cases.
Keep in mind these discriminatory provisions only apply to medical malpractice cases and not other types of negligently caused deaths. 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 child could recover for their emotional damages if he 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 socio-economic categories you could be held responsible for these types of damages to the family of the deceased person. The statute elevates only doctors, hospitals, and other health care 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.