In McCall v. United States of America, the Florida Supreme Court declared that the statutory cap on noneconomic damages in medical malpractice cases was unconstitutional. (In reaching this conclusion, the court determined that the numbers Governor Jeb Bush and his cronies presented to the Florida Legislature to demonstrate a medical malpractice crisis were cooked. In other words, the numbers were phony.)
As important and right as this decision is, a gigantic and dangerous wrong remains alive within the medical malpractice civil justice system.
Florida’s Wrongful Death Act is the civil law blueprint for addressing a wrong resulting in death caused by negligence. Section 768.21 Florida Statutes lays out who may be compensated for the loss of a loved one and by what measure. In all but one type of case where death has resulted from negligence, the children, no matter their ages, of a parent who has died without leaving behind a surviving spouse may recover from the wrongdoer for pain and suffering and the loss of the decedent’s companionship and protection. (See this blog for an easy to understand wrongful death survivors and damages chart.)
The one exception? For death caused by medical malpractice.
In pertinent part, Section 768.21(8) Florida Statutes provides as follows:
The damages specified in subsection (3) shall not be recoverable by adult children … with respect to claims for medical negligence as defined by s. 766.106(1).
Since Florida Statute 768.18(2) considers an adult child to be any child 25 years of age or older, the result of these two statutes taken together is that surviving children 25 years of age or older of parents whose death was caused by medical malpractice, are entitled to nothing for their devastating loss.
Our law firm receives calls on a weekly basis from the middle-aged children of elderly parents whose deaths were caused by medical malpractice. Their disbelief quickly turns to anger when informed that their loss is without a remedy, that the wrongdoer gets to walk away without so much as a slap on the wrist.
The civil justice system is one way, along with the criminal justice system, that civilized societies remedy and punish wrongs committed by negligent and irresponsible individuals and companies. In theory, a money judgment motivates wrongdoers to improver their policies, procedures, conduct and behavior.
The danger associated with the wrongful death medical malpractice exemption is two-fold: First, no threat of punishment means that lax behavior experiences no consequences. Second, medical providers know that a dead patient means no financial liability, while a surviving, yet severely harmed patient, can mean significant liability exposure. This is not to suggest that medical providers prefer their patients damaged by malpractice dead than alive, but why create the opportunity.
Unfortunately, the Florida Supreme Court has held the wrongful death act exclusion of medical malpractice adult survivors constitutional in Mizrahi v. North Miami Medical Center, 761 So.2d 1040 (Fla. 2000).
We believe that the statute and the Mizrahi opinion create a grave injustice.
Here’s an email I received last week from a woman, whose elderly mother died in a North Florida hospital, after being told that Florida law prevents her from bringing a claim.
Dear Mr Gale,
Please try for me, regarding my mother’s case. I am horrified at what happened in that hospital, also known as Death Central. I stayed with my mother and watched helplessly and knew what what was going on, I plead with them to remove the tube. No inform consent form was signed to have the tube put there. My mother fought them off, her hands and feet were bounded, I removed the ties myself. Please help me.
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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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