What is Negligence, and How Does It Differ in Florida Personal Injury and Medical Malpractice Cases?

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Negligence is simply failing to act reasonably. It’s failing to do something a reasonable person would do under the circumstances and/or doing something a reasonable person would not do under the circumstances. But, not all negligence is the same.

If a person dies as a result of medical negligence, there is an excellent chance that there will be no recovery whatsoever from the person or persons who caused the death. That is not true when a person dies from other types of negligence, such as auto negligence or premises liability.

Florida citizens did not have the right to sue for wrongful death until the legislature gave it to them by creating wrongful death statutes. The intent behind the wrongful death medical malpractice statutory scheme is to compensate the living, not the dead. Truthfully, there is nothing any jury can do to make a deceased victim of medical malpractice whole. And while the legislature intended the medical malpractice wrongful death act to be broadly interpreted, it contains some significant proscriptions.

When a person dies from medical malpractice/negligence, there is no recovery for the deceased’s shorted life or all the experiences he or she will never get to have. The only recovery for the deceased’s lost wages is from the date of injury to the date of death. For most victims, that is a very short period of time, so lost wages is typically a small feature of the lawsuit. Funeral expenses can be recovered, but those usually only range from $6,000 – $20,000.00. Medical expenses can be recovered, but part of that recovery must be paid back to the health insurance company that paid for the healthcare.

Who can recover for the loss of the deceased’s life? Only persons defined under the statute as “survivors.” Survivors can recover for the loss of the relationship they had with the deceased and for the lost support, services, and guidance they received.

The age of the deceased and the survivor is important. If a man 25 or younger dies from medical malpractice, the following persons can recover as survivors: his legal spouse, his children, and his parents. If he is unmarried and has no children, his parents can recover but only because he is 25 years old or younger. If he were 26 years old, there would be a complete bar to his parents’ recovery.

If a 58-year-old woman (or any adult 26 or older) dies from medical malpractice, the following persons can recover as survivors: her legal spouse and only her children who are 25 or younger at her death. The deceased woman’s parents and any children she has who are 26 or older at the time of her death cannot recover at all.

Under no circumstances do any siblings or aunts and uncles have any recovery rights. Importantly, a surviving spouse must be a legal spouse. A fiancé, life partner, or common law spouse has no legal standing under these laws, which are completely unrelated to the state’s intestency laws.

The thought is that by the time our children are 25 years old, they should no longer require the support of their parents. That might make sense from a financial perspective, but the joy and commitment we feel for our children doesn’t magically stop when they turn 26. Likewise, the love and longing we have for our parents only grows over time, it doesn’t diminish or disappear simply because we reach an arbitrary point in our mid-twenties.

It is illogical to me that four siblings, aged 18, 22, 25, and 28 can lose their mother through medical malpractice and simply based on their ages at the time of their mother’s death, three can recover for this profound loss while one cannot.

Again, this only applies when the deceased’s death was caused by medical negligence. If the death were caused by general negligence, these strict bars to recovery would not be in play.