When someone dies as the result of medical malpractice in Florida, state law unfortunately limits the types of damages that can be recovered – and by whom. Florida injury lawyers have long railed the restrictions on who may proceed with a medical malpractice claim in the event the patient dies – restrictions for which powerful medical industry lobbyists pushed hard.
The result is provisions of the Florida Wrongful Death Act that restrict plaintiffs in medical malpractice wrongful death cases to:
- A child under the age of 25;
- An adult child who is dependent on decedent for financial support;
- A spouse;
- A parent of a child under age 25.
Unless decedent has a surviving loved one who falls under these narrow parameters, there is legally no claim allowed under law. Further, if a decedent dies while a case is pending and doesn’t have a survivor in this category to step in as a plaintiff, the case will die with them and the negligent health care provider is never held to account. That is something that should bother everyone who potentially needs medical care in Florida because it means facilities and providers providing care that falls below baseline accepted medical standards may never have to answer for it, leaving them free to practice and profit without consequence. Unfortunately, the Florida Supreme Court has upheld this as a legitimate means of reducing medical insurance costs.
As our West Palm Beach medical malpractice attorneys can explain, there is one procedural remedy certain plaintiffs can seek if they have a pending claim and fear they may not live to see the case resolved. Those over 65 can petition the court to bring their case to trial as soon as possible, citing diminished health, a short expected life-span and an argument that failure to do so would be prejudicial to plaintiff and the ultimate goal of justice. But why this magical number of 65? The truth is it’s completely arbitrary. One could still file for an expedited trial, but their rights are less clear-cut.
The Palm Beach Post recently reported, one medical malpractice plaintiff is fighting to the right to an expedited medical malpractice case. She’s 60. Last year, she was looking forward to retirement, which would mean lots of time for beach days and travel. But instead, today she barely has the strength to get out of bed in the morning. She’s dying of cancer, which she was diagnosed with in November. She’s suing a doctor at JFK Medical Center, alleging earlier discovery of that tumor when she first underwent diagnostic testing at the beginning of the year could have saved her life. Instead, she was told the numbness she experienced was likely induced by anxiety. Had she known the truth, it likely would have bought her more treatment time associated with better survival odds, she says. Radiation and chemotherapy were not longer options by the time she received the diagnosis. If nothing else, the extra time would have given her at least six to eight months to live out her “bucket list,” like vacationing in the Greek Isles when she was still well enough to travel. By the time she had a proper diagnosis, the cancer spread to her bones. She can’t even climb up the stairs these days.
She’s fighting for justice against the hospital, but her husband is deceased and she has no children. If the case doesn’t go to trial before she dies, the case dies with her. An attorney representing her likened this unfair outcome to a “free kill law.” Defendants who can drag out these complex cases long enough may never need to be held accountable.
Working with a dedicated medical malpractice attorney with the drive, experience and resources to press for an expedited case under such circumstances may be your last best hope for justice.
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC., Attorneys at Law, 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.
Dying Lake Worth woman fights to take lawsuit against JFK to court, June 22, 2018, By Jane Musgrave, Palm Beach Post
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Misplaced Catheter Blamed in Medical Malpractice Lawsuit, June 23, 2018,West Palm Beach Medical Malpractice Attorney Blog