The Florida Legislature's Medical Malpractice loophole In Florida's Wrongful Death Act

Recently I have held a number of consultations with potential clients who have tragically

and prematurely lost a parent as the result of what appeared to be medical malpractice. In such cases, the Florida Wrongful Death Act, Florida Statutes 768.16-768.26, controls both which parties may make a claim and what types of damages can be recovered. Unfortunately, in each of those recent cases, I have had to inform the surviving adult children that as a result of a blatantly discriminatory decision by the Florida Legislature, they have no recourse against the responsible party, regardless of how egregious or indefensible the negligence may have been.

If a death occurs as a result of medical malpractice, Florida Statute 768.18 sets out just whom may recover both economic (lost wages, net accumulations of assets) and non-economic (pain and suffering, loss of companionship ) damages. The most obvious survivors are the living spouse and any blood relative (or adopted children) who are dependent upon the deceased for support and services. Persons in either category can claim both economic and non-economic damages.

In addition, living children of the deceased who were under 25 years old at the time of the death can claim damages for mental pain and suffering, and loss of parental guidance and companionship often referred to as parental consortium.

Lastly, the decedents estate can recover actual medical bills and funeral expenses , which are usually reduced by any bills paid by a third party, such as Medicare or Medicaid.

So far, so good. However, in both of the cases I cited above, the surviving children were all over the age of 25 and were still mourning the loss of a single parent (one by divorce, one widowed). Thats where the Legislatures gift to the medical community is exposed and results in real world injustice.

Section 768.21(8) reads: The damages specified in subsection (3) (mental pain and suffering) shall not be recoverable by adult children and the damages specified in subsection (4)( parental pain and suffering for a deceased minor child) shall not be recoverable by parents of an adult child with respect to claims for medical negligence.

The prejudice and unfairness created by this section is obvious. Since the decedent in both cases I was asked to evaluate had neither a surviving spouse nor children under 25 years old, the only damages which could be recovered would be the funeral bills oh, and the bills incurred as a result of the treatment by the negligent medical provider. In stark contrast, if the deceased parent had been killed in a plane crash or run down by a negligent driver, the surviving children, regardless of age, could have sought the full measure of damages, including mental pain and suffering.

Why the disparity ? The simple answer given by the Florida Legislature is that this restriction is necessary to control runaway medical malpractice insurance premiums. Unfortunately, the Florida Supreme Court, while not ruling on the validity of this argument , has upheld this provision as a legitimate exercise of legislative authority to create public policy. In effect, if the public does not approve of this law, then the only recourse is to elect representatives who will repeal it highly unlikely given the intense lobbying and massive funds expended by the medical, hospital and insurance industries to get it enacted in the first place under the guise of tort reform.

The Florida Legislature has decided to ignore, at least in cases of medical malpractice, the language of Section 768.17 : 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.

We, the public, are the ultimate losers.

by: Robert Heyman

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