Medical Malpractice lawsuits are never easy. They are usually hard fought, require skilled lawyering, and knowledgeable experts. However, some claims can never get filed. Why you ask? Because among the many obstacles within the Medical Malpractice Act and the Florida Wrongful Death Act is the limitation on survivors.
Pursuant to Florida Statute 768.21:
(3)…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.
(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.
However, in Medical Malpractice claims:
(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).
Minor children, means children under 25 years of age.
Thats right. In claims involving wrongful death arising out of Medical Malpractice, ONLY children under age 25 can recover for the loss of a parent, and a Parent can ONLY recover for the death of a child under age 25. That is a law that must be changed, and leading that effort is Jacinto Garrido, who lost his mother after a doctor failed to diagnose her cancer, and then falsified records. Mr Guerido said it best, “we don’t stop loving our parents after we reach 25.”
There is simply no rational basis for this law, and in fact one could argue leads to bad medicine by providing doctors a free pass if their elderly patient dies.
Mark Kaire has been practicing law in Miami for nearly 30 years. He is dedicated to helping the injured people of Miami receive compensation. Mr. Kaire has been blogging on Miami’s legal issues for many years.