Florida Injury Attorney Blawg

Florida's Wrongful Death Act, Sections 768.16-768.26, contains the list of people who may recover damages for the death of an individual caused by the fault of another. These individuals are referenced in the Act as survivors.

Survivors are not allowed to bring separate lawsuits against the at-fault parties. Rather, their claims are brought on their behalf by a Personal Represenative or PRs appointed by the court. This is a serious responsibility and PRs are charged with doing it properly. PRs have a fiduciary duty to each survivor. Section 733.602 Florida Statutes and In re Estate of Wiggins, 729 So.2d 523 (Fla. 4th DCA 1999). Among other things, the fiduciary duty requires PRs to proportion the proceeds for survivors and the estate in a reasonable and equitable manner. Continental National Bank v. Brill, 636 So.2d 782 (Fla. 3rd DCA 1994); University Medical Center v. Ziegler, 625 So.2d 125 (Fla. 5th DCA 1993); Guadalupe v. Peterson, 779 So.2d 494 (Fla. 2nd DCA 2000); and Thompson v. Godson, 825 So.2d 941 (Fla. 1st DCA 2002) review denied 835 So.2d 266 (Fla. 2002).

Disputes often arise among survivors over the allocation of the proceeds recovered in a case by settlement or final judgment. Part of a PR's fiduciary duty is to see that the proceeds are allocated equitably. This is sometimes easier said than done. For instance, the PR may also be a survivor and may try to allocate a disproportionate share to himself or herself. Another example of which I recently became aware involved the PR, who was the grandmother of a young decedent, trying to allocate significantly more of the settlement proceeds to her daughter, the mother of the deceased child, than to the child's father. (The parents were divorced.)

Continue reading "Fiduciary Duty of Personal Representatives to Survivors Under Florida's Wrongful Death Act" »

Who can be compensated and the types of damages that are available when a person dies through the wrongful act or negligence in Florida of any person or company is prescribed by statute in the "Florida Wrongful Death Act," sections 768.16 through 768.26. The chart below is a breakdown of section 768.21.

Wrongful Death claims are brought on behalf of statutory "survivors" by the Personal Representative of the decedent's estate. The Personal Representative, typically a family member and often a survivor, is appointed by the court after due notice is given to all interested parties. The Personal Representative hires the attorney who will bring a claim to recover damages for the decedent's estate and survivors. Florida wrongful death attorneys handle these cases on a contingent basis, meaning that attorney's fees are paid only after a successful recovery has been made in the case. The standard within the legal industry is for the fee to be a percentage of the overall recovery, rather than being based on an hourly rate.

Who may recover under the Act and to what extent varies according to the circumstances of each case and can be confusing. There have been many legal challenges to the Act, yet it has survived all challenges essentially intact. At this point in time, it will take action from the Florida Legislature to change the Act.

The goal of this blog is to make the Act understandable. The chart shows the types of damages that can be recovered and by whom. Many of the variations and exceptions are counterintuitive and unfair. For example, a surviving spouse will preclude the recovery of any damages by the decedent's parents. In addition, the Act gives special consideration to medical providers, in some instances putting them beyond the reach of the law for causing death by medical negligence/malpractice.

Spouse Dies - Surviving Spouse but no Surviving Children
Spouse's Damages:

• Loss of Decendent's Companionship and Protection


• Mental Pain and Suffering from date of injury


• Loss of Support and Services from date of injury to date of death (w/ interest)


• Future Loss of Support and Services from date of death (at present value)


• Medical and Funeral Expenses due to decedent's injury/death if paid by survivor

Spouse Dies with Surviving Children and Surviving Spouse
Spouse's Damages:

• Loss of Decendent's Companionship and Protection


• Mental Pain and Suffering from date of injury


• Loss of Support and Services from date of injury to date of death (w/ interest)


• Future Loss of Support and Services from date of death (at present value)


• Medical and Funeral Expenses due to decedent's injury/death if paid by survivor

Children's Damages:

• Loss of Support and Services from date of injury to date of death (w/ interest)


• Future Loss of Support and Services from date of death (at present value)


• Minor children only (under the age of 25 - Section 768.18(2) Florida Statutes), or all children if there is no surviving spouse, may also recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury

Parent Dies with Surving Children but no Surviving Spouse
Surviving Children:

• Loss of Support and Services from date of injury to date of death (w/interest)


• Future Loss of Support and Services from date of death (at present value)


• All children may recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury

Continue reading "Florida Wrongful Death Act Survivors and Damages Chart" »

In the wake of The Miami Herald's excellent series, Neglected to Death (Part 1; Part 2; Part 3), on the dire health and safety issues associated with Florida's nursing home/assisted living facility industry, this is a good time to discuss some legal propositions closely related to the subject.

The Herald series focused on the problems and the state's role, through AHCA and law enforcement, to control the situation. It paid little attention to the important role the civil justice system can and does play in regulating the system.

Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals and/or organizations, in which compensation may be awarded to the victim. For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an accident, this will be a civil law case.

In Florida, nursing home residents and their families harmed by negligence can bring claims through the civil justice system against those responsible for causing the harm. Such claims are brought under the parameters established by Chapter 400 of the Florida Statutes.

Even though victims may have the right to sue under Florida law, there is no guarantee of recovering compensation from the wrongdoers. This is because many of the facilities do not carry adequate insurance to cover losses or operate through a legal tangle of corporations and fictitious names designed to frustrate collection efforts.

Estate of Canavan v. National Healthcare Corp., 889 So. 2d 825 (Fla. 2d DCA 2004), provides some assistance to those trying to collect for nursing home negligence. The case, involving a lawsuit brought by the estate of a deceased nursing home resident, allows victims' attorneys to hold a company's directors or statutory managers personally liable for policy-level decisions affecting the operation of a long-term care facility.

Continue reading "Personal Liability Exposure of Nursing Home Director Under Florida Law" »

In Florida, a claim for wrongful death is brought by a court-appointed personal representative on behalf of the decedent's estate and survivors. Florida's Wrongful Death Act (FWDA) (Florida Statute Sections 768.16-768.26) outlines the specific damages recoverable by the estate and the survivors (e.g., surviving spouse and children).

Many wrongful death victims receive medical care for the injuries that have caused them to die. Frequently, Medicare pays those medical expenses.

In 1980, Congress enacted the Medicare Secondary Payer Act. The Act authorized the secretary of the Department of Health and Human Services to seek reimbursement for medical expenses incurred on behalf of wrongful death victims. One of the policies employed was to seek reimbursements from the property of wrongful death survivors who have no obligation or other connection to Medicare. This was always wrong, but it took a federal court to make the secretary understand.

Cases brought under the FWDA are resolved in favor of the estate and survivors in one of three ways: (1) pre-lawsult settlement; (2) settlement during suit; or (3) jury verdict rendered to a final judgment. When a case is settled, the personal representative is responsible for allocating the settlement proceeds between the estate and the survivors. In many instances, the estate is left with only a tiny portion of the overall recovery.

Until September 29, 2010, the secretary of the Department of Health and Human Services gave little regard to the allocations made under alternatives (1) and (2). The only allocations respected by the secretary were those made by a jury, alternative (3). Backed by the federal government, the secretary would muscle reimbursements from allocations made to survivors under options (1) and (2), even when the allocations are approved by a probate court judge. This was unacceptable to the personal representative and survivors in Bradley v. Sebelius, 621 F.3d 1330, 2010 WL 3769132 (11th Cir. 2010), who challenged the secretary's practice of ignoring allocations made by personal representatives and approved by probate courts.

Continue reading "Whose Money Is It? - Medicare Liens in Florida Wrongful Death Cases" »

What are the rights of expectant parents for the death of a fetus from an incident like a slip and fall or medical malpractice? Surprisingly, because a fetus is not considered a person under Florida's Wrongful Death Act, Tanner v. Hartog, 696 So.2d 705 (Fla. 1997), neither parent may bring a claim for wrongful death or for loss of companionship. U.S. v. Dempsey, 635 So.2d 961 (Fla. 1994).

Because the law treats the death of a fetus as a physical injury to the mother, the mother may bring a personal injury action against the at-fault party. The action can include a claim for emotional injuries.

The viability of a father's claim for negligent infliction of emotional distress is far less certain. The answer depends, in part, on the mysterious and unpredictable "impact rule."

In Florida, whether a person may recover for emotional injuries is governed by the impact rule. Florida's impact rule provides as follows: "[b]efore a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress injuries must flow from personal injuries the plaintiff sustained in an impact. The rule actually requires some impact on the plaintiff, or, in certain situations, the manifestation of severe emotional distress such as physical inuries illness." Fla. Dep't of Corr. v. Abril, 969 So.2d 201, 206 (Fla. 2007)."

The rule was developed to limit "fictitious or speculative claims." Willis v. Gami Golden Glades, LLC, 967 So.2d 846, 850.

Continue reading "Florida Civil Law - Compensation for Loss of Fetus (Stillbirth) Due to Negligence" »

In Greenfield v. Daniels (November 24, 2010), the Florida Supreme Court decided that paternity of a child could be determined in the course of a wrongful death proceeding under Chapter 768, Fla. Statutes rather than in a paternity proceeding under Ch. 742, Fla. Stat. The Court's decision disapproved the conflicting decision of a lower appellate court in Achumba v. Neustein, 793 So.2d 1013 (Fla. 5th DCA 2001).

In Greenfield, the bioligical father of a minor child committed suicide. A wrongful death action was brought by the estate of the decedent against a psychiartist (and a hospital) for allegedly negligently discharging him. A claim was made for the minor as a "survivor" under the statute. However, the doctor challenged the child's status as a "survivor," claiming that the child's status could not be established after the purported father's death.

The legal question at issue was whether or not paternity could be established in the wrongful death proceeding.

Continue reading "Florida Wrongful Death Action - Determining Paternity" »

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, a legal action to recover damages must be brought under the "Florida Wrongful Death Act" (Florida Statutes 768.16-768.26). This blog contains the elements of such a Wrongful Death Act case.

• Statute of Limitations: 2 years. Florida Statute Section 95.11(4)9d). A lawsuit must be filed within two years of the cause of the wrongful death being confirmed or suspected. This can be a tricky issue.
• Court of Competent Jurisdiction: Florida Circuit Court or Federal District Court if none of the defendants reside in Florida.
• Parties to the Lawsuit (Plaintiff): A Florida Wrongful Death Act case is brought by a court-appointed Personal Representative on behalf of "Survivors." Strict guidelines apply as to who is considered a survivor. (This blog outlines the guidelines.) The Personal Represenative may also be a survivor and is usually someone with a close connection to the decedent. The court may appoint a guardian ad-litem to protect the interests of minors and incompetent adults.
• Parties to the Lawsuit (Defendant): The case is brought against those thought to be responsible for causing the wrongful death. Defendants can be individuals, companies, and the government. Although insurance companies often pay the claims, unless the claim is for uninsured/underinsured motorist benefits, insurance companies are not defendants.
• Damages: Damages in a Florida Wrongful Death Act case is monetary compensation paid to survivors based on various measures. The principal measures are: mental pain & suffering; loss of the decedent's companionship and protection; past and future loss of support and services; and the payment of medical and funeral expenses. (See this blog for an outline of who is entitled to damages.)
• Pretrial Procedure: Florida Wrongful Death Act claims can be settled among the parties at any time. Many are settled before a lawsuit is filed. Others are settled after a lawsuit is filed but before the case goes to trial. The remainder can be settled during and after trial.
• Trial: Wrongful death cases not settled prior to trial are tried to a judge and jury. The judge rules on legal issues while the jury decides questions of fact.
• Post-trial: All rulings by the judge and the verdict can be appealed by either side. The threat of appeal by one side or the other is often what precipitates a post-trial settlement.

Continue reading "Elements of a Florida Wrongful Death Legal Case" »

Yesterday's blog was about the primary legal differences between Florida's workers' compensation and personal injury systems with regard to accident-related bodily injuries. Today's blog will address the differences, which are significant, between Florida's workers' compensation system and it's Wrongful Death Act for the loss of life due to accidents.

For the most part, the laws in Florida regarding compensation for death caused by accidents are prescribed by statute. Workers' compensation addresses the issue through Florida Statute 440.16, while Florida's Wrongful Death Act (768.16-768.26), covers it in the context of third-party liability. (CAVEAT: There are exceptions to Florida's workers' compensation immunity laws that could make the employer liable for damages under the Wrongful Death Act. A lawyer should always be consulted to consider the issue.) The differences between the two bodies of law are significant.

THE MAIN DIFFERENCES:

• Negligence. As a legal concept, negligence is generally defined as conduct that is culpable because it falls short of what a reasonable person would do to protect another individual from foreseeable risks of harm. It is often difficult to prove negligence. While negligence does not have to be established in a workers' compensation case, it is a necessary and essential element of every wrongful death case other than those involving strict liability.


• Damages. The monetary compensation for death in workers' compensation may not exceed $150,000, up from $100,000 from just a couple of years ago. With the exception of death caused by medical malpractice (see this blog), the wrongful death statute does not contain a similar arbitrary cap. The wrongful death statute allows for what is known as non-economic damages (e.g., loss of companionship; mental pain and suffering). Florida's workers' compensation system does not. The primary reasoning for the difference has to do with the issue of negligence. The Florida Legislature has decided that not being allowed to recover non-economic damages is a fair price to pay for not having to prove negligence in workers' compensation cases. In my view, $150,000 hardly makes for a fair trade-off. Workers' compensation allows for the recovery of $7,500 in funeral expenses.


• Who May Recover Damages. Both bodies of law contain statutory schemes for who may recover damages for death resulting from an accident. Each scheme is convoluted. The monetary benefits through workers' compensation are paid on a periodic basis, while the compensation under the Wrongful Death Act are paid in a lump sum. I have prepared a flow chart for who may recover under the Wrongful Death Act - follow this link.


• Statute of Limitations. Two (2) years for each. There are exceptions and variations on this black-letter statement, so a knowledgeable lawyer should be consulted before any conclusions are reached.


• Trial by Jury. Not available in workers' compensation cases. Available upon request in wrongful death cases.


• Attorney Representation. Available in both types of cases.

The issues addressed in this blog are complex and complicated, not nearly as simple as they may appear here. It is for this reason that we encourage and highly recommend that these issues be addressed with a qualified attorney.

Continue reading "Legal Distinctions Between Florida's Workers' Compensation System and Wrongful Death Act for Loss of Life" »

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)

Continue reading "Florida's Wrongful Death Statute Creates a Privileged Class" »

To the surprise of many, most of the doctors who work in Florida's hospital emergency rooms are not hospital employees. Instead, they are independent contractors. (It is quite rare for Florida hospitals to employ their ER physicians.) Equally surprising is that Florida law does not hold a hospital liable for a doctor's negligence simply because the hospital grants privileges or credentials to the doctor, unless there was negligence in the credentialing. These matters become important when emergency room malpractice causes serious personal injuries and death.

With the reality of arbitrary statutory damage caps limiting the monetary exposure of medical negligence defendants, it is often necessary [for the victim or the victim's family] to recover from multiple parties to be justly compensated for serious injuries or death. For such damages resulting from negligent emergency room services, the hospital would seem to be a natural target. Not so.

Today's hospitals typically take the position that the doctors working in their emergency rooms are independent contractors, individuals for whom they have no legal liability when things go wrong. Strictly speaking, they may be right. Independent contracts are not employees, whose negligence subjects the employer to liability under the principle of respondeat superior (the Latin meaning is 'let the master answer').

Thankfully, Florida law does not accept the strict view of this consequential subject.

The main legal principles being used to hold hospitals accountable are:

• Non-delegable duty


• Actual agency


• Apparent agency


• Negligent credentialing

Non-delegable duty. This theory, which is not limited in its application to medical negligence cases, is most often utilized for activities involving the risk of serious injury or loss. In the context of emergency rooms, the risk is addressed by statutes and rules which set forth strict guidelines for modes of operation. Recent court decisions have relied on these rules and regulations to find that hospitals have a non-delegable duty to provide various non-negligent services in its emergency rooms.

Actual agency. The elements necessary to establish an actual agency relationship are: acknowledgment by the principal that the agent will act for him, the agent's acceptance of the undertaking, and control by the principal over the actions of the agent.

Apparent agency.The main element of this principle is the impression through words and actions a hospital conveys to the public about its ER. Through advertising and appearance (e.g., uniforms; logos; paperwork; etc.), the general public can reasonably believe that an ER's physicians are hospital employees. This is usually a fact question requiring a decision by the trier of fact, typically a jury.

Negligent credentialing. Involves granting privileges to an unqualified physician to practice medicine in the hospital. The mechanism for allowing a doctor to ply his trade in a hospital setting is supposed to be more than a rubber-stamp process. Thoughtful consideration based on rigorous standards should be followed.

Continue reading "Liability of Florida Hospitals for Emergency Room Malpractice" »

Drowning is the leading cause of death of young children and a significant cause of death of medically frail elderly persons in this state. Constant supervision is the best way to prevent drownings. Cognizant, however, that supervision is not always available, the Florida Legislature has devised a statutory scheme designed to deny, delay, or detect unsupervised entry to swimming pools, spas, and hot tubs. The scheme is set forth in Chapter 515 of the Florida Statutes.

In order to pass final inspection and receive a certificate of completion, a residential swimming pool must meet at least one of the following requirements relating to pool safety features:

• The pool must be surrounded by a perimeter barrier that (1) is at least 4 feet high; (2) does not not contain any features which would allow children to crawl under, squeeze through, or climb over it; and (3) is set far enough away from the pool's edge so that a child or elderly person who has penetrated the barrier does not immediately fall into the pool. (The perimeter barrier is required even if the residential yard is surrounded by a fence, wall, or other enclosure unless the fence, wall, or other enclosure or portion thereof is situated on the perimeter of the pool, is being used as part of the barrier, and meets the barrier requirements of the statute.)


• The pool must be equipped with an approved safety pool cover. An "approved safety pool cover" can be manually- or power-operated and must meet certain delineated standards established by the American Society for Testing and Materials (ASTM).


• All doors and windows providing direct access from the home to the pool must be equipped with an exit alarm that has a minimum sound pressure rating of 85 dB A at 10 feet. "Exit alarm" means a device that makes audible, continuous alarm sounds when any door or window which permits access from the residence to any pool area that is without an intervening enclosure - a perimeter barrier (see the first bullet point, above) - is opened or left ajar.


• All doors providing direct access from the home to the pool must be equipped with a self-closing, self-latching device with a release mechanism placed no lower than 54 inches above the floor.

A person who fails to equip a new residential swimming pool with at least one of the pool safety features outlined above, commits a misdemeanor of the second degree. This has significance in the context of civil cases arising out of pool accident cases, in that violations of statutes can be considered evidence of negligence (see Florida Standard Jury Instruction 401.9). Conversely, being in full compliance with the Residential Swimming Pool Safety Act (Chapter 515), provides some insulation to the property owner against being found at fault.

Continue reading "Summary of Florida's Residential Swimming Pool Safety Act" »

Florida's Wrongful Death Act, located at Sections 768.16-768.26 of the Florida Statutes, concentrates on loss suffered by survivors and creates a separate entitlement to damages for each survivor. However, the survivors cannot bring separate legal actions. Rather, the personal representative is the only party with standing to bring a wrongful death suit on behalf of the estate and the survivors. See § 768.20, Fla. Stat. Under the legal procedure set out in the wrongful death statute, all survivors and claimants are required to participate in a single legal action to be filed by the estate on behalf of all the survivors. Upon trial, damages are to be apportioned to each survivor in the verdict form." Wiggins v. Estate of April Brown Wright, 850 So.2d 444 (Fla., 2003).

The personal representative selects the attorney who will pursue the recovery on behalf of the estate and the survivors. The typical contingent fee retainer agreement in these cases provides for attorneys' fees from 33-1/3% (case settled pre-suit) to 40% (post-suit, post-Answer [to lawsuit]) of the combined amount recoved by the estate and the survivors.

In many instances the survivors entitled to compensation in a wrongful death action may be in agreement both as to prosecuting a wrongful death claim, and in the distribution of any recovery. When this is the case, this procedure will work well, especially when all of the survivors have a commonality of interest and a single attorney can represent those interests. This may often be the case, for example, when a parent-spouse is killed and the surviving spouse and children are represented by the same attorney.

Continue reading "Attorneys' Fees in Florida Wrongful Death Cases" »

When the death of an individual is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person or company, including those occurring on navigable waters, who may be entitled to compensation for the loss is a matter of statutory design, the work of the Florida Legislature. The Legislature's work is located in what is known as the "Florida Wrongful Death Act," Sections 768.16 through 768.26 of the Florida Statutes. The particular section of the Act dealing with damages is 768.21 .

Wrongful Death claims are brought through an Estate by a Personal Representative on behalf of those entitled to compensation. In most cases, the Personal Representative is a surviving family member and also entitled to compensation. The Personal Representative hires the attorney to prosecute the case.

Individuals entitled to compensation under the Florida Wrongful Death Act are referred to as "survivors." The Act also authorizes the decedent's Estate to recover damages under certain circumstances.

Who is eligible and what is recoverable for damages under the "Florida Wrongful Death Act" is not a simple formula. Multiple factual variations apply. What follows is an outline of those variations:

Spouse Dies - Surviving Spouse but no Surviving Children
Spouse's Damages:

• Loss of Decendent's Companionship and Protection


• Mental Pain and Suffering from date of injury


• Loss of Support and Services from date of injury to date of death (w/ interest)


• Future Loss of Support and Services from date of death (at present value)


• Medical and Funeral Expenses due to decedent's injury/death if paid by survivor

Spouse Dies with Surviving Children and Surviving Spouse
Spouse's Damages:

• Loss of Decendent's Companionship and Protection


• Mental Pain and Suffering from date of injury


• Loss of Support and Services from date of injury to date of death (w/ interest)


• Future Loss of Support and Services from date of death (at present value)


• Medical and Funeral Expenses due to decedent's injury/death if paid by survivor

Children's Damages:

• Loss of Support and Services from date of injury to date of death (w/ interest)


• Future Loss of Support and Services from date of death (at present value)


• Minor children only (under the age of 25 - Section 768.18(2) Florida Statutes), or all children if there is no surviving spouse, may also recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury

Parent Dies with Surving Children but no Surviving Spouse
Surviving Children:

• Loss of Support and Services from date of injury to date of death (w/interest)


• Future Loss of Support and Services from date of death (at present value)


• All children may recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury

Continue reading "Damages/Compensation in Florida Wrongful Death Cases" »