Medical malpractice and the hurdles of Florida law (rights of survivors under Florida’s medical malpractice laws)

While the great majority of Florida hospitals, doctors and medical professionals provide excellent care to patients, there are still some instances where errors are made that have serious and catastrophic consequences for patients.  If you or a loved one is involved in one of these unfortunate medical errors, it is important to understand the intricacies of Florida’s medical malpractice laws.  The laws are written to benefit insurance companies, hospitals and doctors, not patients.  In fact, the laws in Florida have made it very difficult to pursue a medical malpractice case.  So, its important to know what your rights are and what the law will allow.

The one area that I find most difficult to explain to potential clients is why, after a loved one has died as a result of poor medical care, are they not permitted to sue the doctor or hospital.  The short answer is that the Florida medical lobby is strong in Tallahassee.

All too often, I have had a potential client come to me and tell me about a loved one that has died as a result of medical malpractice and I have been forced to turn the case down, even though the malpractice was egregious and led to someone’s death.  The reason for this is that, under Florida law, when someone dies as a result of medical malpractice, there are only certain, specifically defined individuals that can bring a case for the loss of the loved one.  These specific family members are as follows:  (1) a child under the age of 25, (2) an adult child that is dependent on the deceased for financial support, (3) a spouse, and (4) a parent of a child under the age of 25.  If a loved one falls within any other category, there can be no claim under the law.  It is a sad reality and, unless the laws are changed, this is how things will remain.

In any other accident, if you are not married and do not have a child under 25, your lineal relatives can bring a claim.  Your parents or your siblings can bring a claim on your behalf.  But not in medical malpractice.  As part of the tort reform process, and thanks to a strong lobby in Tallahassee, the laws for medical malpractice claims are different than other cases.  The only way this will change is if the Legislature recognizes that the people desire change.

I will never forget one client that came to my office about 3 years ago.  His fiancée, who was an otherwise healthy 55 year old woman, suffered an asthma attack.  The doctors gave her the wrong medication which made the condition go from serious to life threatening.  By the time they realized the mistake they made, it was too late, and the woman died.  The man who came to my office had been involved in a relationship with this woman for 20 years.  They loved together, they both had children from prior marriages and shared family times together.  But they just decided not to formally marry.  Instead, they felt comfortable calling each other “fiancée.”  So, when she died as a result of malpractice, since they were not formally married, and he youngest child was 26 years old, there was absolutely nothing that could be done in court.

This is the sad reality of the medical malpractice laws in Florida.  They are written to favor insurance companies and medical professionals without equal care and consideration to victims of malpractice.  And this is all done under the shroud of “tort reform” and the threats of higher healthcare premiums.  The truth is, everyone deserves their fair day in Court and laws should be consistent across the board.  As it stands today, consistency is not part of the system.  And as long as that is the case, I will have to deliver the news to other loving families that they cannot pursue their claims because they do not fall within the strict parameters of Florida law.

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