Wrongful Death or Not Wrongful Death

Sometimes people get seriously hurt by someone else’s negligence, then the hurt person dies a week later, a month later, or maybe even several months later. The question then becomes, “Is this a wrongful death case or a typical negligence case?”  Under Florida law, when a personal injury plaintiff dies, the personal injury claim survives.  In other words, the estate of the personal injury plaintiff is entitled to compensation for the damages the deceased (dead) plaintiff would have been entitled to if they would have survived. That includes medical bills, lost wages, and other economic losses, plus pain, suffering, inconvenience, and lost enjoyment of life.

However, suppose the plaintiff dies due to the injuries caused by the defendant’s negligent act. Then the case becomes a wrongful death claim, and away goes the plaintiff’s claim for pain, suffering, inconvenience, mental anguish, and lost capacity to enjoy life.  In its place comes an entitlement for the mental pain and suffering and lost companionship suffered by the deceased person’s spouse.  If there is no spouse, the children or possibly the parents of the deceased child have a claim for mental pain and suffering related to the early demise of their loved one.  Minor children have a claim for lost parental guidance and companionship, as well as pain and suffering, whether there is a surviving spouse or not.

A big question often arises:  Is this a wrongful death claim or not?  In other words, does the evidence show that the deceased plaintiff died due to the defendant’s negligence?  Or was their death the result of unrelated circumstances?  The answer to that question is not always clear.  For instance, imagine John Doe suffering back pain in a car crash.  A year later, he undergoes back surgery because of the back pain.  A few months later, he develops a blood clot that travels to his heart, and he dies.  In that situation, the blood clot may have been caused by the surgery, or it may have been completely unrelated to the surgery.  Which is it?  The answer to that question will determine who gets what in the end.  So, how does that question get answered?

The short answer, the jury decides.  Those cases usually involve a battle of the experts, where one side is trying to prove wrongful death, and the other is trying to prove it’s not wrongful death.  The plaintiff’s attorney will typically choose the side most favorable to the plaintiff.  For example, in a case where there are no surviving relatives to make a claim for mental pain and suffering or lost companionship, the plaintiff’s attorney will attempt to prove that the defendant’s negligence did not cause the death.  

On the other hand, if there are multiple survivors with rights to compensation for mental pain and suffering, and the deceased plaintiff only suffered for a short time before dying, the plaintiff’s attorney will attempt to prove that the negligence of the defendant caused the death.  The defense attorney will do the opposite.  In many cases, it’s best for the plaintiff’s attorney to plead in the alternative.  In other words, when the plaintiff’s attorney files a complaint, they plead that it’s a wrongful death case and a simple negligence case.  That way, all bases are covered, and the jury ultimately decides.

If you have a case that may or may not be a wrongful death, it’s important to speak to an experienced wrongful death attorney to determine the best way to pursue the case.  Be sure to ask about this.  It’s important to understand your attorney’s strategy and question your attorney about this issue.

If you have any questions about this or any other questions related to wrongful death, please call me at (850)777-7777.  I’m happy to help.  


Jimmy Fasig