Florida’s Wrongful Death Act Fosters Better-Dead-Than-Alive Philosophy In Medical Malpractice Cases

people.jpgFlorida’s Wrongful Death Act, located in sections 768.16 through 768.26 of Florida’s statutes, controls legal actions arising from the loss of life on account of a tortfeasor’s negligence. The Act refers to those who may recover damages for the loss as “survivors.”

Survivors can be spouses, children and parents. The Act allows survivors to recover the decedent’s medical expenses and future lost earnings and accumulations, and to be compensated for their own mental anguish.

Needless to say, the loss of a parent or child causes substantial mental anguish. Inexplicably, Florida’s Legislature has carved out an exception for mental anguish damages caused by medical negligence. Specifically, the Act bars

  • compensating adult children for mental anguish caused by the death of a parent
  • compensating parents for mental anguish caused by the death of an adult child

Since section 768.18(2) of the Florida Statutes defines minor children as being children under 25 years of age, notwithstanding the age of majority, the Wrongful Death Act’s exceptions apply in the case of children 25 years of age and older.

These exceptions are arbitrary and capricious. Unfortunately, they have been upheld by the Florida Supreme Court. See Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 – Fla: Supreme Court 2000.

In addition to depriving survivors of their rightful due, these outrageous exceptions create a dangerous environment for many people who receive medical care in Florida. Strong and fair medical negligence laws demand accountability from providers and facilities. This promotes quality care. Weak laws allow the opposite. Making matters worse, the exceptions create a financial incentive for death as the prefered outcome following a serious malpractice event. Under Florida’s civil justice system, those who survive their medical malpractice injuries can be far costlier than those who do not. Because money has a way of making people do rotten things, this is a troubling scenario.

Florida Statute 766.18 outlines the damages available to the victims of medical negligence. While the numbers are arbitrary and capricious, thanks again to the Florida Legislature, the statute does allow victims to recover moderate non-economic damages (i.e., pain & suffering, mental anguish). In some instances, Florida’s Wrongful Death Act even allows the recovery of substantial mental anguish damages by certain family members in medical malpractice cases. However, the Act allows nothing to family members whose cases fall into either of the exceptions.

A high percentage of cases fall into the exceptions.

The elderly and their loved ones are especially victimized by the law. Unless an elderly person leaves behind a surviving spouse, most negligent medical providers and facilities are never held to account in a court of law for their errors. This is because most elderly patients are retired and do not have children under the age of 25. No loss of income plus no minor children means no civil action for wrongful death caused by medical malpractice can be pursued. While the victim is dead and his or her loved ones are forced to suffer without recourse, the perpetrators simply walk away scot-free. Period. End of story.

A fact pattern less common than the one described above yet not unusual, involves the death of adult children who do not leave behind Wrongful Death Act survivors such as a spouse or minor children. The parents of these individuals get nothing for the loss of a cherished child resulting from medical negligence. Either Florida legislators think parents do not suffer mental anguish from the loss of an adult child, or they care more about protecting medical providers from the consequences of their malpractice.

We often speak with surviving family members whose lives have been touched by medical malpractice. Those whose rights are barred by the exceptions react with shock, anger and disappointment. They cannot believe that laws like these exist anywhere in the United States.

Welcome to Florida.

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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.

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