As longtime South Florida medical malpractice attorneys, one of the most heartbreaking things over the years has been telling parents of adult patients – and adult children of unmarried patients – that they have no legal recourse after their loved one has died due to medical negligence. That’s because the Florida’s medical malpractice and wrongful death laws protect negligent doctors and insurers at the expense of trusting patients and bereaved families. State law specifies that if an adult over the age of 25 dies as a result of medical practice and they did not have a surviving spouse or minor children (under the age of 25), no other family member can recover damages for pain and suffering.
Put another way: If an adult over the age of 25 dies of medical malpractice in Florida, the only people allowed to pursue a legal claim would be a surviving spouse and/or minor children (under 25).
Unfortunately, most people don’t learn about this until after their loved one has died. Some scenarios that have resulted:
- The mother and longtime girlfriend of a 51-year-old man who died following mistakes during an open heart operation could not find an attorney to take their case.
- The three adult children of a 59-year-old divorced woman who died following a botched bowel surgery learned they had no legal claim.
- The parents of a 34-year-old unmarried woman with no children had no recourse when doctors failed to diagnose breast cancer until it had advanced to the final stages, leading to her early death.
Florida is the only state in the country with such a law. Not only that, but we have a sizable population of widowed seniors, unmarried college students, and middle-aged single and divorce people whose kids are over 25 or who don’t have any kids at all. If they died in a car accident or because of a dangerous condition on someone else’s property, their loved ones could pursue damages for pain and suffering. But if they die as a result of medical malpractice, their loved ones are left with no means to hold accountable negligent doctors, surgeons, nurses, and hospitals.
“No one should be valued less just because they are unmarried, over the age of 25, or have grown children,” said West Palm Beach medical malpractice lawyer David Halberg.
Numerous state legislative bills have been introduced to address this, but have thus far failed to even make it to the governor’s desk. Last year, one such bill passed the House but failed to make it through the Senate. This year, H.B. 6011 died in the Florida House Rules Committee on March 14th.
Lobbyists for the insurance and medical industries are powerful. They maintain that such a measure would only serve to line the pockets of personal injury lawyers while raising the insurance premiums of good doctors.
What this erroneous narrative overlooks is the fact that it’s already quite difficult to bring a Florida medical malpractice claim. The proof burden is high, requiring expert witness testimony of a similarly-situated professional willing to attest that the defendant failed to abide the applicable standard of care for their specialty, facility, and region. Further, unlike most personal injury claims, which can be filed within four years, medical malpractice claims must be filed within two years. (Wrongful death claims must also be filed within two years.) Also, because personal injury lawyers are only paid on a contingency fee basis (meaning not unless/until we win), law firms are not eager to take on cases that have slim hope of prevailing. Individuals have virtually no chance of winning a medical malpractice case if they’re representing themselves (pro se).
Another flaw in this argument is that all previous measures taken with the express purpose of down insurance premiums or health care costs to the public – be it damage caps or additional barriers on who can file – have never really delivered on those promises. Insurance premiums for doctors stay about the same. Health care costs to the public have only continued to climb. The only difference is that it’s harder to pursue legitimate claims against negligent doctors. At the end of the day, it’s truly more about shielding careless physicians and insurers from negative consequences for malpractice.
It is our hope that sometime in the near future, the law will change and families will be free to pursue true justice and accountability.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Medical Malpractice Fight Re-Emerges In Florida, Jan. 27, 2022, CBS Miami
More Blog Entries:
Explaining Florida’s Three Strikes Rule for Medical Malpractice, Feb. 10, 2022, West Palm Beach Medical Malpractice Lawyer Blog