Florida's Wrongful Death Statute Creates a Privileged Class

August 24, 2010

Florida Statute Section 768.21 outlines who is eligible for benefits under Florida's Wrongful Death Act. (See this blog for an easy-to-understand breakdown.) With one exception, the statute - although debatable as to its fairness - treats all victims alike. The exception? The survivors of those who have died from medical malpractice/negligence.

Sections (3) & (4) of Statute 768.21 determine the eligibility of children and parents of decedents to compensation under the Act. Section (3) provides that "[M]inor children of the decedent and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury," while Section (4) declares that "[E]ach parent of an adult child may also recover for mental pain and suffering if there are no other survivors." (Florida Statute 768.18 defines "minor children" as children under 25 years of age, notwithstanding the age of majority)

Regarding the issue of fairness, why, as indicated in Section (3), are adult children excluded from compensation for lost parental companionship, instruction, and guidance for mental pain and suffering if there is a surviving spouse? What difference does a surviving spouse make to the suffering of the decedent's adult children? As to Section (4), why should a surviving parent not be compensated for the loss of an adult child if that adult child also left behind a spouse and minor children? What difference does the existence of other survivors have on the pain felt by the parent?

If these arbitrary exclusions were not bad enough, when a wrongful death is caused by medical negligence, not only do the same exclusions apply, but Section (8), of 768.21 goes further by barring the recovery of (1) adult children for the loss of a parent, even if the parent did not have a surviving spouse, and (2) parents of an adult child even if the adult child died without leaving behind other survivors. In other words, when medical malpractice causes death, an adult child (over the age of 25) can receive nothing for the loss of a parent and a parent can receive nothing for the loss of an adult child.

The better view, IMHO, is to remove all arbitrary exclusions when it comes to children, parents, and siblings. Allow each to make his/her case to the jury and allow the jury to decide who is entitled to an award of damages and to what extent. At the very least, the special consideration given to medical providers should be removed.

Solutions must come from The Florida Legislature.

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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals - the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.