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Medical Malpractice Loophole in Florida's Wrongful Death Act: Is it really the "Free Kill Bill"?

Posted by Robert E. Heyman | Jan 07, 2021 | 0 Comments

A number of years ago I was referred a client who told me how her husband died tragically as a result of an obvious medical error which occurred at a local hospital. She had two children, ages 21 and 23. I obtained treatment records, had them reviewed by a medical expert and verified that the ER doctor at the hospital had rendered treatment which was below the appropriate standard of care. After the pre-suit period had expired without any meaningful settlement discussions, I began to draft the complaint. While doing so I casually asked the wife what was the date of her wedding to her deceased husband. She responded by telling me that while they had married years ago, they had divorced approximately five years earlier, however eventually moved back in with each other and had been living as "husband" and "wife" at the time of his death. Uh-oh.

I quickly had to explain to her that she could not file suit as her "husband's" survivor since they were no longer married. Thankfully, she was still appointed as personal representative of his estate and filed a medical malpractice claim on behalf of their two sons which was later successfully settled. This potentially sticky situation arose as a result of a medical malpractice exception carved out of Florida's Wrongful Death Statute - sections 768.16 - 768.26 - by the Florida Legislature.

For all other cases in Florida where a person is killed by the negligent act of another, a claim for damages can be filed by the decedents "survivors", which include the spouse, children ( minors and adults) and parents of the decedent. Damages can be claimed in the form of "economic" damages: medical bills, funeral expenses, and loss of future earnings - legally referred to as "net accumulations". In addition, survivors can also seek "non-economic" damages which are defined as mental pain and suffering, and loss of companionship and guidance. However, when a person dies as a result of medical malpractice, an exception to the Wrongful Death Statute significantly limits both the survivors and the damages they can seek.

This statutory distinction grew from the Florida Legislature's concern ( and significant lobbying by the insurance industry, no doubt) over a perceived crisis involving medical malpractice claims. In 1988, per Florida Statute 766.201, the Legislature made the following "findings":

(1) Medical malpractice liability insurance premiums have increased dramatically in recent years, resulting in increased medical care costs for most patients and functional unavailability of malpractice insurance for some physicians.

(2) The primary cause of increased medical malpractice liability insurance premiums has been the substantial increase in loss payments to claimants caused by tremendous increases in the amount of paid claims.

In response, the Legislature added section 768.21 to the Wrongful Death Statute which excluded adult children over the age of twenty-five from obtaining non-economic damages. In addition, that section also excluded the parents of adult children from also seeking damages for the same mental pain and suffering and loss of companionship. The illogical nature of this distinction has caused many strange results. Examples:

(a) A widowed father of four children, ages 30, 27, 23 and 19. Only the younger two can seek damages for the pain they have experienced as a result of their father's death. Is their anguish any greater than their older siblings?

(b) The parents of a deceased 22 year old child can recover non-economic damages; had the child been 26, they would have been barred by the statute. As a parent, I know there is no possible way to distinguish between the grief from either loss.

Now while the excluded children can still seek economic damages such as funeral expenses and medical bills charged to the decedent's estate, in most instances this limited recovery is not worth the time and expense of filing a lawsuit which will most likely take years to resolve. The more blatant unfairness of 768.21 is that it limits claimants and excludes damages which are permissible in most every other negligence case except medical malpractice. For example, if the deceased is killed in a motor vehicle accident, all survivors can seek every type of damages. This has been challenged in the Florida courts on Equal Protection grounds, but to date has been rejected. See: Mizrahi v North Miami Medical Center, 761 So.2d 1040 ( Fla. 2000).

There have also been attempts in the Florida Legislature to repeal 768.21 ,most recently in 2020 with House Bill 6015. That effort died in the House Civil Justice Subcommittee and was not even considered by the full legislature. We should expect these efforts to continue. What is needed is hard data that the Legislature's concerns regarding the "crisis" caused by increasing medical malpractice is no longer present. If you have been tragically affected by the wrongful death of a loved one or a family member has  been injured by suspected medical malpractice, please contact our offices at 727-822-3700 for a no-cost consultation.

About the Author

Robert E. Heyman

Bio Robert E. Heyman was born in Providence, RI, and grew up in Barrington, RI. He graduated from Barrington High School in 1974, and earned the rank of Eagle Scout. Following high school graduation, Mr. Heyman attended Northfield-Mt. Hermon Academy in Northfield, MA and thereafter attended co...


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