Is the loss of a loved one by medical malpractice less painful and catastrophic than such a loss by some other form of negligence? Either the Florida Legislature thinks so, or else it purposely created an arbitrary and capricious law to insulate medical providers from being held fully accountable for their negligence. The law in question is Section 768.21, of Florida’s Wrongful Death Act.
768.21 says who can make a civil damage claim arising from the death of a loved one through the negligent act of another party. Subsection (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.” Subsection (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.)
This is not all. When the death is caused by medical negligence, subsection (8) goes even further than subsections (3) and (4) in limiting rights. (8) bars adult children from bringing a claim, even where the parent does not have a surviving spouse, and it bars parents of adult children even where the child did not have any other survivors like a spouse or children. In other words, subsection (8) precludes adult children and the parents of adult children from bringing claims when the loss is the result of medical negligence. Period. End of story.
We understand the logic behind the legislation limiting parents from recovering where the decedent has a surviving spouse or children. In many negligence cases, the insurance liability limits are not adequate to cover the damages. The design of the legislation may be to target the limited funds to those most directly harmed, the surviving spouse and children. The alternative solution is to remove the arbitrary exclusions as to children, parents, and siblings and let the court system make the allocation.
We can think of no good reason for the special exception of subsection (8). There is no medical malpractice crisis. Never has been. It’s a myth perpetrated by the insurance industry and hospitals to increase profits by limiting accountability. The exception should be eliminated. Unfortunately, the Florida Supreme Court has decided that the law is constitutional. Accordingly, change must come from the Legislature or the voters, by a constitutional amendment.
(See this blog for an easy-to-understand flow chart of Florida Statute 768.21.)
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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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