Medical malpractice in Florida and elsewhere represents a serious problem with often fatal consequences. The estimated death toll in the United States from medical mistakes stands at 250,000 per year. Nearly 7,000 to 9,000 deaths occur from errors in prescribing and administering medications. According to a 2016 study, medical malpractice ranked third among causes of death nationwide.
However, many loved ones of malpractice victims might not have any recourse against healthcare providers. Below, we examine a potential loophole to your ability to recover in a Florida wrongful death lawsuit for rising out of malpractice.
What Constitutes Medical Negligence?
Florida Statutes Section 766.106(1) defines medical negligence or medical malpractice claims as those arising out of the nonperformance or performance of medical services. Errors by physicians in an examination, diagnosis, surgical procedures, prescriptions, and other forms of treatment commonly fall as malpractice. For instance, you might have such a claim when a physician prescribes a medication even though the medical records show you or your loved one was allergic to it. In such a case, the physician failed to follow the standard of care calling for a review of medical records.
Nurses, CNAs, and others in the health field can make medical mistakes as well. These may include a nurse’s failure to follow physicians’ instructions or not following orders for giving medicine.
Who Can File a Florida Wrongful Death Lawsuit?
To help you understand the “free kill” statute’s impact, a primer on a Florida Wrongful Death Lawsuit is in order. Specifically, the personal representative of the deceased person’s estate files the lawsuit. The survivors do not file in their own names. If you’re an executor or administrator, you may seek damages on behalf of the decedent’s estate, and the decedent’s survivors. In the latter category, you find the surviving spouse, sons or daughters, parents, and brothers or sisters who depended upon the deceased person.
Damages Recoverable for the Estate
On behalf of the estate, the personal representative can pursue the expenses of treatment of the injuries or illness that resulted in the decedent’s wrongful death. The estate can also recover the wages lost by the decedent from the time of the injury to death. To prevent double recovery, Florida law reduces lost earnings by what a survivor gets in lost support.
The tortfeasor is also liable for any funeral expenses paid by the estate and for the value of assets that the decedent might reasonably have obtained but for the untimely death. These accumulations take the form of income and pension benefits.
Damages Recoverable by Survivors
The death of a loved one causes financial and emotional harm. On the economic side of things, survivors may recover the value of lost services and support provided by the decedent. These losses may include child care, housework, buying groceries or other household items, and financial support. Survivors may recover out-of-pocket payments for the funeral and burial.
Spouses, children, and parents grieve and experience pain and suffering. As a child, you miss the guidance, instruction, vacations, visits, outings, and other companionship of your mother or father. With the death of a spouse comes the loss of the survivor’s time, love, affection, and companionship, and protection afforded by the decedent.
What Damages Do the “Free Kill” Statute Bar?
In most wrongful death cases, a Florida Wrongful Death Law Firm can pursue economic as well as non-economic damages. Florida’s “free kill” statute makes the former category of damages unattainable for certain survivors when death results from medical negligence. Below, we’ll explain what constitutes a medical negligence case.
Who is Barred From Recovery Under “Free Kill”?
The bar against non-economic damages in medical malpractice cases applies where an adult child is involved, either as a claimant or the deceased. The wrongful death law treats those 25 years old and older as adult children.
A child aged 25 years old or older cannot pursue loss of instruction, guidance, and companionship damages when medical mistakes cause the death of a parent. Parents of adult children who die from medical negligence may not recover from mental anguish or pain and suffering.
The fact that the Florida “free kill” statute does not prevent recovery of economic losses doesn’t lessen the statute’s impact on wrongful death claimants. Adult children and parents of a deceased adult child often lack economic losses. As an adult, you probably do not depend on your children or parents for financial support or services. You might be able to recover the expected accumulation of income or pension benefits to the decedent’s estate, but these amounts may prove small.
If you’re a spouse, you can pursue pain and suffering, loss of consortium or companionship, and other economic damages against a doctor, hospital, or other healthcare providers in a Florida Wrongful Death Lawsuit. The “free kill” statute does not affect you or your claim. Our Florida Wrongful Death Law Firm can take items such as photographs, greeting cards, videos, a testimony from you and your family members, and acquaintances of your deceased spouse to show the companionship, security, and affection taken from you by medical negligence.
Medical Errors in Nursing Homes
Medical mistakes and other misconduct can also happen in nursing homes, often bringing death upon the nursing home residents who suffer from violation of their rights. Abuses and violations of nursing home residents’ rights include unsanitary conditions, bedsores, physical or mental abuse, failing to give medications, and giving the wrong ones.
Under Section 400.023(9) of the Florida Statutes, claims against a nursing home operator do not fall under the umbrella of medical malpractice claims. Claimants don’t face the limits on recovery of pain and suffering and the loss of companionship, security, instruction, and other non-economic damages that otherwise present themselves in a medical malpractice claim. If your parent or adult child has died while in a nursing home, speak with an attorney in a Florida Wrongful Death Law Firm to determine your alternative to a more traditional medical malpractice claim.
The Florida “sure kill” law erects numerous barriers to the family of lost loved ones and their quests for full compensation and justice. However, not all cases of medical mistakes come within the bar. Contact us today if you claim a medical mistake or abuse by a health care provider has caused the death of a loved one so that you can know the extent of your rights and possible compensation.
