The loss of a child, parent, or spouse can be one of the most emotionally and financially challenging times to overcome. Overcoming this loss can appear even more insurmountable when you know that you would still be sharing the love, support, and companionship of your loved one had it not been for the wrongful acts or omissions of someone else. In some cases, Florida law allows you to pursue a wrongful death action to compensate you for the loss of a child, parent, or spouse.
Trusted Skills and Experience
The attorneys at Greco & Wozniak P.A. in Tampa, FL have handled hundreds of different types of cases, including many wrongful death actions. Our seasoned wrongful death attorneys have the skills and training necessary to allow a jury to place themselves in your shoes and feel the pain, sorrow, and loss of companionship that you are experiencing. This will help lead the jury to a favorable verdict to compensate you for the full measure of this loss. We are committed to taking an individualized, case-specific approach to allow a jury to understand and appreciate the magnitude of your loss in a way that is most favorable to you and your family.
Unfortunately, wrongful death actions did not exist at common law and must be brought pursuant to Florida’s Wrongful Death statute outlined in Florida Statute § 768.21. The legislature has placed significant limitations on the types of damages recoverable and the family relationship and age of the survivor necessary in order to pursue a wrongful death action. In all types of wrongful death cases, Florida law allows a surviving spouse to pursue an action for the loss of the decedent. If there is no surviving spouse, Florida law also allows a parent to pursue a wrongful death action for the loss of a child. This is subject, however, to significant limitations in wrongful death cases arising from medical negligence. Florida law also allows a child to pursue a wrongful death action for the loss of a parent subject to certain significant limitations in wrongful death cases arising from medical negligence. The recoverable damages in wrongful death cases cover the past and future pain and suffering, loss of companionship and protection, loss of support and services, medical expenses, funeral expenses, and loss of the prospective net accumulations of an estate.
The legislature has placed significant limitations on wrongful death actions arising from medical negligence. In a wrongful death action based on medical negligence, children 25 years of age or older may not pursue compensation for pain and suffering or loss of companionship or protection for the loss of a parent. Similarly, a parent may not seek compensation for pain and suffering or loss of companionship or protection for the loss of a child 25 years of age or older at the time of death. A surviving spouse may always pursue an action seeking these types of damages. Consequently, it is almost never cost feasible to justify pursuing a wrongful death medical negligence action unless a qualified survivor meets the criteria explained above.
At Greco & Wozniak P.A., we firmly believe that the legislature’s limitations on wrongful death actions based on medical malpractice make absolutely no sense and are fundamentally unconstitutional. The statute, however, has been held constitutional by the Florida Supreme Court on the basis that a wrongful death action did not exist at common law and is solely a creature of statute. The Florida Supreme Court held that it is within the discretion of the legislature to limit the recoverable damages based on the family relationship to the deceased since wrongful death actions are solely a creature of statutory law. We are hopeful that over time, the Florida Supreme Court will revisit this issue with the appropriate case and find the statute to be unconstitutional.
Wrongful Death Frequently Asked Questions
Q. Are there caps on non-economic damages in wrongful death cases based on medical malpractice?
A. No, earlier this year the Florida Supreme Court announced a landmark decision in McCall v. United States, 134 So.3d 894 (Fla. 2014) finding the statutory cap on wrongful death non-economic damages to be unconstitutional. Specifically, the Florida Supreme Court held that the statutory cap on wrongful death non-economic damages did not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida. Additionally, the Florida Supreme Court held the statute imposed unfair and illogical burdens on injured parties when an act of medical negligence gave rise to multiple claimants.
Q. Does an estate need to be set up in order to pursue a wrongful death action?
A. Yes, a wrongful death action must be brought by the personal representative of the descendant’s estate. The personal representative does not necessarily have to have an individual claim, but must be the person to bring the action. The personal representative may be an independent third party and does not have to be the surviving spouse, parent, or child of the descendent.
Q. What is the statute of limitations for pursuing a wrongful death action?
A. Generally speaking, a wrongful death action must be commenced within 2 years from the date of the descendant’s death. The statute of limitations may expire sooner in a wrongful death action based on medical malpractice if the negligence was committed prior to the descendant’s death and the descendent knew or should have known of the negligence with the exercise of due diligence.
Q. Can a qualified survivor recover compensation for loss of the decedent's income?
A. Yes, as long as a survivor meets the criteria contained in the statute, a wrongful death recovery includes compensation for loss of the descendant’s support. Support includes income that the descendant was earning which is then offset by personal consumption.
This site is made available as a service to our clients for informational purposes only. The material contained in this website is intended to be a general overview and does not pertain to any specific legal matter. Nothing contained in this website should be substituted for the advice of an attorney nor does it create an attorney client relationship between any reader and Greco & Wozniak P.A. An attorney must always be consulted before relying on any of the information contained on this site.