What is the Florida Wrongful Death Statute?

Florida Wrongful Death Statute Explained

Wrongful death is a legal term that simply means someone was wrongfully killed. For many years, Florida law did not give family members the right to hold someone that wrongfully killed their loved one accountable in civil court. That all changed when, the Florida legislature created Florida’s first wrongful death Statutes. The current version of the act is contained within section 768.16 through section 768.26 Florida statutes. As a group these statutes are commonly referred to as the Florida Wrongful Death Act.

While the Florida Wrongful Death Act corrected the problem of holding the wrongdoer responsible for killing a loved one in civil court, there are still many inequalities in the current version of the statutes. One inequality comes in the form of limiting the circumstances in which adult children and parents can be compensated for their loss. Another form of inequality comes in the form of banning any recovery in medical malpractice cases for the death of unmarried adults without children, many gay people, and many senior citizens. Before we get to the inequalities and discrimination, it is important to understand what compensation is available under the act.

Who is Entitled to Wrongful Death Damages?

Florida limits the people that are entitled to damages to certain close relatives. Furthermore, who can recover also depends on the circumstances. Below are the basic class of people that can recover:

  • All Spouses
  • All Minor Children
  • Adult Children When There is No Spouse
  • Parents of Adult Children With No Spouse And No Children
  • Parents of Minor Children

What Damages are Recoverable Under the Florida Wrongful Death Act?

Under the Florida Wrongful Death Act, the personal representative of the decedent is the only person that has the right to move forward with a claim or a lawsuit. Section 768.20 Florida statutes states the personal representative shall bring claims for the benefit of the decedent’s estate and for the benefit of the decedent’s survivors. The damages recoverable by the estate include medical and funeral expenses and lost wages from the date of injury up to the date of death. The estate can also recover something called net accumulations. This generally means the amount the person would have saved after paying all of their expenses. The survivors are entitled to the value of lost support and services. The decedents spouse is entitled to damages for loss of companionship and for mental pain and suffering. Minor children under the age of 25 are also entitled to loss of companionship and mental pain and suffering. If the decedent had no spouse then adult children are entitled to loss of companionship and mental pain and suffering.  If the decedent had no spouse and no children, then parents are entitled to compensation for loss of companionship and mental pain and suffering.

When a Survivor Dies, Most of Their Claim Dies With Them

Section 768.24 of the Florida statues indicates that a survivor’s death before final judgement shall limit the survivor’s recovery to lost support and services to the date of his or her death. This means the survivors estate can still collect for any loss of support and services. But once the survivor dies, their claim for any damages for pain and suffering dies with them and it is not replaced. This can literally end a lawsuit when the only survivor dies because the claim for loss of support and services up to the time of a survivor’s death often has very little value. The most common example of this happening occurs when the only survivor is a spouse. If the spouse dies before the lawsuit of the decedent is resolved, the entire lawsuit may die with them. This is a real risk when the spouse is elderly. Many defense lawyers recognize this and purposely drag out wrongful death lawsuits involving elderly spouses in hopes the spouse will die. All of this makes most plaintiffs lawyers hesitant to bring wrongful death claims when the only survivor is an elderly spouse.

Adult Children and Parents Have Less Rights Under the Florida Wrongful Death Act Than Other Survivors

The inequalities in the statute occur with what happens to adult children, to parents, and how the act defines survivors for medical malpractice cases. The first inequality occurs with adult children. Under the wrongful death act, adult children are only entitled to compensation for their loss if there is no surviving spouse. This means that if the person was married when they died, the adult children are not entitled to compensation for their loss. The next inequality occurs with parents. Parents are only entitled to compensation if the decedent was a minor or if the decedent was an unmarried adult and has no children. This means that parents of a married decedent or a decedent with adult children are not entitled to compensation for their loss.

Florida Health Care Providers Cannot Be Held Accountable for Wrongfully Killing Unmarried Adults With No Children and Unmarried Adults With Adult Children

The greatest inequality of all occurs in medical malpractice cases. Unfortunately, the health care industry has a lot of power and influence over the Florida legislature. As a result, the legislature chose to limit the circumstances when a survivor can recover in a medical malpractice case. Basically, adult children and parents can never recover damages in a medical malpractice case. This not only eliminates their damages, it also effectively eliminates all lawsuits in wrongful death cases involving medical malpractice in Florida when the decedent is older than 25, is not married, and has no minor children. This means there is no real remedy when a healthcare provider wrongfully kills an unmarried adult with no children or an unmarried adult with adult children. Think about that very carefully. The Florida legislature made a conscious choice not to hold healthcare providers accountable in these circumstances. What is even more egregious is the fact that the Florida Supreme Court upheld this discriminatory statute on April 20, 2000 in the case of Mezrahi v. North Miami Medical Center L.T.D. The end result is that the Florida legislature and the Florida Supreme Court have concluded it is ok to purposefully discriminate against this group of people.

The Florida Wrongful Death Act Discriminates Against Many Gay People and Many Senior Citizens in Medical Malpractice Cases

It does not directly state within the Wrongful Death Act that the life of many gay people, and many senior citizens have no value. But that is certainly the effect in medical malpractice cases involving death. In other words, the Florida legislature chose not to provide any real remedy when a health care provider wrongfully kills an unmarried adult without children or an unmarried adult with adult children. This discrimination disproportionately affects gay people because they are less likely to be married and less likely to have children. It disproportionately effects seniors because their spouses have often passed away and their children, if they have any, are adults.

Are Wrongful Death Claims Barred if They Are Not Brought in Time?

In Florida, a wrongful death lawsuit must be filed with the court in most wrongful death cases within 2 years after the wrongful death occurred. In medical malpractice and nursing home death cases, the lawsuit must be brought within 2 years of when you knew or should have known of the wrongful conduct regardless of when the person dies. There are some exceptions to these limits, but they apply to the overwhelming majority of cases.

What Type of Conduct is Required the Hold a Wrongdoer Accountable Under the Florida Wrongful Death Act?

There must be more than just an accidental death. The wrongdoer must have engaged in wrongful conduct. This includes:

  • Negligent Conduct,
    Negligent conduct occurs when someone fails to use reasonable care. This is the most common kind of wrongful death claim. Examples of negligent conduct are when someone is not paying attention while driving, when a property owner fails to maintain their property, or a doctor performs below the standard of care.
  • Reckless Conduct, and
    Reckless conduct occurs when someone knows the conduct could cause someone’s death, but they do it anyway. Examples of reckless conduct include a driver drag racing down a crowded city street, a person choosing to engage in drunk driving, or a company choosing not to redesign a product it knows has a design flaw that has harmed someone.
  • Intentional Conduct
    Intentional conduct occurs when someone intends to kill someone. The most common type of intentional conduct involves murder. You would think murder wrongful death claims are very common. But the truth is, this is the least likely claim to bring. The reason is that insurance will not pay a claim for an intentional act. In addition, most murderers do not have enough money to make going after their personal assets worth pursuing. As a result, the only time wrongful death murder cases are pursued is when the murder is wealthy.

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Hire Distasio Law Firm to Bring a Claim

We know the emotional trauma you have experienced. When a fatal accident happens, you need a wrongful death attorney with the experience, dedication, determination, and discipline necessary to make the wrongdoer take responsibility for their actions.

The Distasio Law Firm has been helping families hold wrongdoers accountable in wrongful death cases for over 28 years. If your friend or loved one has suffered a wrongful death, we know we can help. Sure, we will aggressively pursue the case. But many lawyers can do that. What sets us apart from other law firms is our passion to help our clients and make our community a safer place.

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