SOME STRIGHT TALK FROM YOUR ATTORNEY
MARK A. GLASSMAN, ESQ.
For obvious reasons, Florida has a large percentage of elderly residents. I am often contacted by family members of elderly people who have died as a consequence of negligence. However, due to certain provisions in Florida law, we are forced to turn down many wrongful death cases involving the elderly regardless of the merits of the claim. If you are seeking legal representation to pursue a wrongful death claim on behalf of an elderly victim of negligence, you need to be aware of the limitations of Florida’s Wrongful Death Act which is found at Florida Statutes §766.16 – §766.26.
As a general rule of thumb, the Florida Wrongful Death Act permits a decedent’s estate to recover all economic damages (i.e. loss of earnings and related medical bills) incurred due to the decedent’s death and all non-economic damages (i.e. mental pain and suffering) on behalf of the statutory survivors. Unlike an injury case, the non-economic damages available in a wrongful death case are related to the pain and suffering of the survivors, and not the decedent. In wrongful death cases, the statutory survivors would include the decedent’s surviving spouse, the decedent’s surviving children under the age of 25, and/or a minor decedent’s surviving parents. If the decedent does not have a survivor in one of the categories listed above, the decedent’s adult children qualify as survivors who may recover non-economic damages.
However, if the wrongful death claim is based on an allegation of medical negligence, the Wrongful Death Act contains a provision which prohibits the estate from recovering non-economic damages on behalf of a surviving adult child. Since most elderly malpractice victims do not have minor children, are retired, and receive medical benefits through Medicare; it is financially prohibitive to pursue a wrongful death claim on behalf of an estate of an unmarried, or widowed, elderly victim of medical negligence.
Consider the following examples:
1. A 68 year old married man with one child over the age of 25 dies instantly when hit by a car while legally crossing the street. The man was retired, and in overall good health. His surviving spouse is 65 years old and in good health. The man has a 30 year old son and five grandchildren with whom he interacted with regularly. His wife, son and grandchildren are devastated over his death.
2. A 68 year old single man with one child over the age of 25 dies instantly when hit by a car while legally crossing the street. The man was retired, and in overall good health. His wife of 35 years died one year prior. The man has a 30 year old son and five grandchildren with whom he interacted with regularly. His son and grandchildren are devastated over his death.
3. A 68 year old single man with one child over the age of 25 dies while undergoing knee surgery because the physician administered a fatal overdose of anesthesia. The man was retired, and was in overall good health. His wife of 30 years died one year prior. The man has a son and five grandchildren with whom he interacted with regularly. His son and grandchildren are devastated over his death.
In all three examples, a 68 year old man died prematurely due to the negligence of another. The common thread is that the only economic damages likely to be recoverable are funeral expenses. Therefore, value and viability of each potential wrongful death case must be evaluated based on the recoverable noneconomic damages available to each decedent’s estate. Case #1 represents a valuable and viable wrongful death claim as the decedent’s estate is entitled to recover mental pain and suffering damages on behalf of the surviving spouse. Due to the existence of a surviving spouse, the estate cannot recover mental pain and suffering damages on behalf of the surviving son. Also, while not as valuable, Case #2 is also viable as the decedent’s estate can recover mental pain and suffering damages on behalf of the surviving son in the absence of a surviving spouse. However, since Case #3 involves medical negligence, the decedent’s estate is strictly prohibited from recovering any mental pain and suffering damages due to the fact that there does not exist a surviving spouse or minor child. Even if the physician in Case #3 admits negligent, it does not represent a viable wrongful death claim because the only damages recoverable would be reasonable funeral expenses. The unfortunate reality is that the legal costs related to conducting a statutorily mandated presuit investigation would likely exceed the recoverable damages.
The bottom line is that any wrongful death claim is complex. If you believe an elderly friend or family member has died as a consequence of negligence or abuse, you should contact an attorney experienced in handling wrongful death claims as there are always exceptions to the rule. Also, it is important to always be cognizant of the two (2) year statute of limitations applicable to every wrongful death claim in Florida. Simply stated, suit must be formally initiated within two (2) years of the decedent’s death, or the claim may be forever barred.