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The Florida Medical Malpractice Wrongful Death Act: Who Can Sue For Damages?

Posted on by in Medical Malpractice


Florida's medical malpractice laws aren't written to benefit patients. They're written to benefit insurance companies, hospitals, and doctors.

In fact, it's important to know what your rights are and what the law will allow because the laws in Florida have made it very difficult to pursue a medical malpractice case. Has healthcare in Florida become more affordable because of the laws that shield hospitals and doctors from responsibility? No.

The Florida Wrongful Death Act, Florida Statutes 768.16 et seq. states that when someone dies as a result of medical malpractice, only certain, expressly defined family members can bring a case for the loss of the loved one.

The specific family members who can bring a medical wrongful death case are as follows:

  1. Children who are 25-years-old or younger
  2. Adult children dependent on the deceased for financial support
  3. The spouse
  4. 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

There can be no viable malpractice claim if a family member falls into any other category. It is a sad reality, and this is how things will remain unless the laws are changed.

The law also allows:

  1. If the patient was employed and the family can fairly predict that over his or her remaining work-life expectancy he or she would have accumulated more assets, then the family may recover those lost assets.
  2. Usually, the family can recover from any medical bills caused by the negligence.
  3. The family may recover for the funeral expenses depending on who paid for them.

Can You Sue for Wrongful Death in Florida?

What happens when the hospital or doctor's malpractice causes the death of an 80-year-old widower who was retired? His children are in their 60's or 40's, and they are devastated by their father's untimely unnecessary death. Unfortunately, under Florida's discriminatory Wrongful Death Act, when there is no spouse, no other dependent relatives, and no children under 25, then the only recoverable damages caused by the negligence are the funeral bill and medical bills. The family is only able to bring a medical malpractice lawsuit to recover a bill which may often not go above $12,000. Since it often costs over $40,000 in expenses to bring a malpractice case (expert witnesses, court reporters, etc.), the suit makes no economic sense and would end up costing more than could be recovered. All too often, we have been forced to turn the case down, even though the malpractice was egregious and led to someone's death.

Florida's hospitals are full of retired people without spouses. We have a huge elderly population who divorced, have lost a spouse, or never married. Because the medical, hospital, and insurance industries in Florida are very politically powerful, the law allows such patients to be killed by medical negligence without recourse. The medical, hospital and insurance industries lobby, donate and are given what they want in the name of the false battle cry of eliminating frivolous lawsuits and of tort reform. The only way this will change is if the legislature recognizes that the people desire change.

The truth is, laws should be consistent across the board, and everyone deserves their fair day in Court. As it stands today, the law is not drafted in a fair manner. And as long as that is the case, we will have to explain to other loving families that they do not have a viable medical malpractice claim because they do not fall within the strict parameters of Florida law.

How to Find a Wrongful Death Attorney

In Miami, 7 out of 10 cases may amount to medical malpractice. At The Law Offices of Sean M. Cleary, our attorney knows how much pain medical negligence can cause, and will fight for all the damages allowed under the law.

If a doctor's negligence lead to wrongful death, our knowledgeable Miami medical malpractice attorney can review your case for free and will help you protect your rights. Call today 305.416.9805 to schedule your free, no-obligation consultation with our top-rated Miami medical malpractice lawyer.

For questions and free legal advice to help individuals please call us

Disclaimer: Please note that the information provided on this site is not formal legal advice, also the site does not allow you to form an attorney-client relationship.