How do I know if I have a wrongful death claim in Florida?

According to Florida Statute 768.17, aka Florida’s Wrongful Death Act, “It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.”  This is called a burden-shifting statute and basically means that when somebody dies due to the negligence of the other, the negligent person is held responsible.

There are three main elements to every wrongful death case: (1) negligence; (2) death; (3) causation; and (4) standing to bring a cause of action.  In order to have a viable wrongful death case, the plaintiff has the burden of proving all four elements.

The first element to prove is negligence.  Negligence is the failure to use reasonable care.  The plaintiff must prove that the defendant was negligent or failed to use reasonable care to pursue a wrongful death claim effectively.  In a typical car or trucking accident, this means that the person who caused the accident failed to act as a reasonably prudent person would under the circumstances.  A rear-end collision is the most typical car accident case. In Florida, the driver of the rear vehicle is presumed to be negligent.  In medical malpractice cases, negligence means that the doctor or medical facility breached the prevailing standard of care, meaning they did something so careless that no other reasonably careful doctor would make the same mistake.  If the plaintiff can prove that the defendant was careless, they must then prove the remaining elements.

Proving death in a wrongful death case is usually not a challenge.  A person is either dead or alive.  However, proving causation is usually the next hurdle the plaintiff must jump, which can often present a challenge.  To prevail in a wrongful death case, the plaintiff has the burden of proving that the negligence caused the death of the decedent (the person who died).  In a typical car accident case, causation is not an issue, but many cases are not so simple.  For instance, I’ve had a wrongful death case where the pharmacist misfiled a prescription, and my client’s father died as a result.  Her father was old and had multiple other physical ailments to deal with, so I had to hire medical experts to testify that the misfiled prescription caused or substantially contributed to his death.  I had another case where my client was on his way to a medical clinic when he was hit by a bus.  The bus driver claimed that he never hit my client but that my client just fell into the roadway in front of the bus as he was leaving the clinic due to his weakened condition.  I hired a crash reconstruction expert to prove that the bus actually struck my client, and we were able to get the case settled. But it was surprising to see how fervently the defendants fought us on the causation issue.

The last element of a wrongful death case is having the standing to sue.  Standing means that you have the right to bring the case to court.  Under the Florida Wrongful Death Act, only certain people can sue in the event of a wrongful death, normally the decedent’s survivors, meaning the decedents’ spouse, children, or parents.  The decedent’s estate also has a right to sue.  The entire claim must be brought by someone named the estate’s personal representative.  The personal representative acts on behalf of the estate and survivors.  This is the subject of another post entirely, so keep reading my other posts related to wrongful death in Florida for more information on this subject.

If you can satisfy all four elements of a wrongful death claim, your case is probably worth pursuing.  Of course, you must have a defendant with liability insurance or sufficient assets to pay a claim.  The death of a loved one is extremely painful, and the last thing you may want to do is talk to an attorney about it.  However, it’s extremely important to talk to an attorney as quickly as possible after a wrongful death to make sure the evidence is preserved, and your rights are protected.  I can’t tell you how many times I’ve received calls a month after the death of somebody’s loved one when I wish they had called immediately.  A good attorney will start gathering evidence immediately after the death of a loved one, not only about the liability issues but also proving the extent of the damages.  I highly recommend you contact an experienced wrongful death attorney as soon as you think you may have a viable claim.