Fort Lauderdale Wrongful Death Attorney

A wrongful death case is fundamentally different than a personal injury case.  Whereas personal injury cases are primarily based in common law, a claim for wrongful death is strictly based on statutory law.  More specifically, a wrongful death case in Florida must be brought pursuant to Florida’s Wrongful Death Act as explained in Florida Statutes §768.16 – §768.26.

Beyond the obvious, there are several key legal distinctions which differentiate an injury case from a wrongful death case.  In an injury case, the claim is brought on behalf of the injured party, and often there can be an ancillary claim for loss of consortium claim brought on behalf of a spouse or minor child.  However, a wrongful death claim can only be brought on behalf of the decedent’s estate.  As such, pursuing a wrongful death claim typically involves the added step of opening an estate in the probate court, and having a personal representative appointed by the probate court to act on behalf of the decedent’s estate.  In most cases, the personal representative will be the decedent’s surviving spouse, adult child or parent. Although the personal representative may be a beneficiary to a wrongful death claim, the personal representative is under a duty act in the best interest of all the statutory survivors.

In an injury case, the injured party will seek damages on his or her own behalf.  However, in a wrongful death case the personal representative will be acting on behalf of the decedent’s estate, and can only seek damages that are expressly permitted by Florida Statute §768.21.

One of the most misunderstood differences between an injury claim and a wrongful death claim is the handling of pain and suffering damages.  Specifically, in an injury claim the injured party has a right to pursue damages for the pain and suffering caused to him or her as a result of the alleged negligence.  In a wrongful death claim, there are no pain and suffering damages available to the decedent.  Rather, the decedent’s statutory survivors, typically a spouse and/or minor children, are entitled to recover for their mental pain and suffering including, but not limited to, a loss of companionship, instruction and guidance, from the time of the initial injury causing the decedent’s death.  Also, when the decedent is a minor child, the surviving parents are entitled to recover similar damages related to their pain and suffering.

A unique, albeit unfair, wrinkle of the Wrongful Death Act is the limitation on pain and suffering damages in cases involving death resulting from medical negligence.  In such cases, if an adult decedent is not survived by a spouse or minor child, the decedent’s estate is prohibited from recovering any pain and suffering damages.  The construction of the law is particularly harsh when it comes to the elderly who do not leave behind a surviving spouse.  Since the elderly are typically retired, receiving  Medicare, and do not have minor children; the exclusion of pain and suffering damages for an unmarried decedent often renders wrongful death claims based upon medical negligence financially unviable as the only element of damages would be the recovery of funeral expenses.

Finally, the time limit for bringing a wrongful death claim is significantly shorter than that associated with general injury claims.  In Florida, a claim for wrongful death must be brought within two (2) years of the decedent’s death, or it may be forever barred.

If someone close to you has passed away due to the negligence of another, you should not delay in contacting an attorney experienced in handling wrongful death matters.  The pursuit of a wrongful death claim is very complex, and requires a special understanding of Florida’s Wrongful Death ActAt the Law Office of Mark A. Glassman, P.A., we have the experience to successfully pursue any claim that may fall under the Florida Wrongful Death Act.   In addition to our experience, we have access to a network of experts who specialize in subjects often related to wrongful death cases.  Please contact Mr. Glassman toll free by phone (844-USA-LAWS) or by e-mail (Mark@USALawsuits.com) to discuss your potential claim.