One thing I don’t like about my job is telling people that despite their suffering, I don’t feel they have a viable malpractice claim. The absolute worst instances are when I explain to persons who have lost loved ones that due to Florida’s medical malpractice wrongful death law, they cannot recover for their losses. In fact, I get several calls a year just asking me if what another attorney said about this law is true. Unfortunately, it is.
When patients are killed by medical malpractice in Florida, the only persons who can recover for the loss of their loved ones are the patient’s spouse and his or her children who are 25-years-old or younger at the time of the decedent’s death. Older children have no recovery rights. Similarly, the parents of a child killed by malpractice can only recover if their child was 25-years-old or younger at the time of death. Parents cannot recover for the death of older children. Domestic partners, fiancés, common law spouses, and siblings have no recovery rights.
People are also shocked to learn that there is no recovery for the pain and suffering the decedent experienced prior to death. I have had clients who suffered miserably for months, sometimes years, before they ultimately died a horrific death. There is no recovery for that suffering because under our laws, upon death, the personal injury claim becomes a wrongful death claim with the accompanying limitations. The estate could recover for funeral expenses and medical bills, but the net recovery for those items is not enough to support the tremendous costs of the lawsuit, much less the attorneys’ fees, and have anything left over for the loved one in the end. That makes these cases economically unfeasible.
Many believe this law has resulted in poorer quality medical care for our seniors. It is certainly true that in Florida, we have a large population of retired and elderly persons. But this law applies to more people than you might think. A person in his or her 40s could conceivably have children over the age of 25 and be unmarried at the time of death. There would be no survivors under this law. Likewise, an unmarried 26 year-old with no children who dies from medical malpractice also would have no qualified survivors. His or her parents could not recover for their loss. The majority of people who die from medical malpractice leave no one behind who can seek justice for this ultimate harm. As a result, the wrongdoers are never held accountable for their actions. Conduct that gets rewarded gets repeated.
What is even more unfair about this law is that it only applies when the death is caused by medical negligence (malpractice). It does not apply when persons die from other forms of negligence, such as car accidents, slips and falls, and unsafe products. This law is just one of many special protections the Florida Legislature has seen fit to give to doctors and hospitals in our state at great cost to other citizens. Those who defend this law say it is necessary to keep doctors from leaving the state, however, there is no evidence of doctors leaving Florida for fear of malpractice claims. In fact, for the past several years, the malpractice insurance carriers have continued to report fewer claims being filed and lower payouts on the few claims that are filed.
If you think this law is as unfair as we do, I would encourage you to contact your legislators and let them know. Go to www.flsenate.gov and www.myfloridahouse.gov and click “find my representative” and tell them how you feel about this grossly unfair law.