Articles Posted in Wrongful Death

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cemetery1.jpgRead together, Florida Statute Section 95.11(4)(d) and Section 95.031(1) provide that an action for wrongful death, under Section 768.21 (known as Florida’s Wrongful Death Act), must be commenced within two (2) years of when the last element constituting the cause of action occurs. This is a strict standard that does not take into account the “delayed discovery” doctrine.

The “delayed discovery” doctrine tolls the statute of limitations until the plaintiff either knows or should know that the last element of the cause of action occurred. The only type of wrongful death action to which the doctrine applies and thus tolls the statute of limitations is one arising from medical negligence. See Section 95.11(4)(b). No other type of wrongful death claim is so tolled.

For example, in Raie v. Cheminova, Inc., 336 F. 3d 1278 – Court of Appeals, 11th Circuit 2003, a wrongful death claim based on products liability was barred even though the Personal Representative did not learn of the cause of death until four years after the decedent’s death.

Although not pertinent to wrongful death claims, the other types of actions to which the doctrine applies are:

  • Claims of fraud.
  • Products liability claims that result in injury but not death.
  • Professional malpractice (95.11(4)(a))
  • Intentional torts based on abuse (95.11(7)).

See Davis v. Monahan, 832 So.2d 708 (Fla., 2002).
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cemetery1.jpgWho 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

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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.
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dollars.jpgIn 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.
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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 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.
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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.
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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.
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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)
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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.
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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.
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