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FROM THE BLOG

After Medical Wrongful Death, Who Can Sue?

Under the Wrongful Death Act, Not Everyone Suffers Equally

A common question encountered at The Patient’s Law Firm is, assuming medical malpractice resulting in death has occurred, who can sue? There are few straightforward answers in law, so it should not surprise you that the answer to this question depends on considerations such as whether the victim was married at the time of the incident, and who, if any family, survived the victim. A brief overview of different scenarios should help illustrate some general principles under Florida’s Wrongful Death Act (WDA).

General Overview of Potential Claimants & Damages in a Wrongful Death Lawsuit

In any wrongful death lawsuit, there are two broad categories of persons potentially entitled to sue. The first category is a legal construct known as an estate. An estate typically is created after someone dies, and it includes everything the person owned. Its “contents” will be passed on to those identified by a will, or to those to whom Florida statutes identify as next in line to receive such assets in the absence of a will. In order for a medical malpractice lawsuit to be brought by and on behalf of an estate, a personal representative must be appointed by way of court proceedings in a probate court.

The damages or monetary recovery potentially available to the estate of a medical malpractice victim include: loss of earnings and loss of prospective net accumulations up to life expectancy, medical bills post-incident (if paid by the estate), and funeral bills. As for noneconomic damages for the estate, it is well-settled case law that the estate cannot bring pain and suffering claims on behalf of the decedent. Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 1, 15 (Fla. 2004).

The second set of persons entitled to bring a lawsuit for medical malpractice after someone dies is comprised of family members known as survivors. Florida statutes define who is a survivor in a medical malpractice case, and who comes “first in line” to the exclusion of other, more distant relatives. As Florida courts have pointed out, the WDA primarily focuses on damages sustained by survivors rather than damages sustained by the estate.

When a Victim of Medical Malpractice Dies and…A Spouse Survives

In addition to the damages recoverable by the estate, if the deceased is survived by a spouse, the spouse is entitled to bring a lawsuit for damages such as: the value of lost support and services from the date of the decedent’s injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value; loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury; medical or funeral expenses due to the decedent’s injury or death, if paid by the survivor. Some of these damages are characterized as “noneconomic damages,” such as loss of companionship and mental pain and suffering, for which there are no monetary caps. Other aspects, such as medical bills and funeral expenses, are quantifiable economic damages.

If a spouse survives and family members other than minor children survive, the universe or potential damages available to those non-spouse family members is small. The surviving family members may only recover loss of support and services if they were financially dependent upon the decedent. They do not have a right to sue for noneconomic, “pain and suffering” damages.

…A Spouse and Minor Children Survive

In addition to the damages recoverable by the estate, if the deceased is survived by a spouse and minor child(ren), both spouse and minor children are entitled to bring suit. Under the WDA, children of the decedent are considered to be minors if they are not yet twenty-five at the time of incident. Both the minor children and the spouse may recover the value of lost support and services from the date of the decedent’s injury to his or her death, with interest, and future loss of support and services from the date of death and reduced to present value. Similar to the recovery for loss of companionship and protection, and mental pain and suffering to which a spouse is entitled, children may also recover for lost parental companionship, instruction, and guidance, and for mental pain and suffering. There are no caps on these noneconomic damages.

…Adult Children Survive

Adult children have a narrowly circumscribed role in the WDA statutory framework, under subsection 768.21(8), Fla. Stat. Under the WDA, children cannot recover for mental pain and suffering for wrongful death claims sounding in medical negligence. Mizrahi v. North Miami Medical Center, 761 So.2d 1040 (Fla. 2000); see alsoWoody v. Delray Medical Center, 2016 WL 705965 (S.D. Fla. February 23, 2016). If any funeral bills or medical bills were paid by adult children, those would be recoverable. Lost support and services damages are potentially available (e.g. if patient was providing financial support to the adult children). Even if the decedent was financially assisting adult children up to the time of death, any calculations of future support and services are potentially offset by the amount available for distribution at the time of decedent’s death (e.g. inheritance).

…Parents Survive

In addition to the damages recoverable by the estate, if the deceased is survived by parents, there are two different tracks a lawsuit could take. If the deceased child was a minor, the parent is entitled to recover for mental pain and suffering from the date of injury. If the deceased child was an adult, the parents may recover for mental pain and suffering provided there are no other survivors (e.g. spouse or minor children of the adult child).

…Any Other Relatives Survive

Florida laws have drawn a line at who is considered within the realm of potential claimants in a medical malpractice wrongful death lawsuit. The only categories of persons who are legally recognized as potentially having a right to sue for the death of a family member because they are related are a deceased person’s spouse, children, and parents. Any other more distant relatives do not have a right to sue for a wrongful death resulting from

medical malpractice unless they are financially dependent on the deceased person for support or services.

Conclusion

As you can see, the determination of who can sue, and for what, can be complex. If you believe a loved one has suffered death from medical malpractice, please contact The Patient’s Law Firm to speak directly with nurse attorney Christa Carpenter.