Florida’s Wrongful Death Act Is Wrongful

At least once a week, I have to tell a grieving family that, even though there may have been medical malpractice which caused their loved one’s death, they don’t have a case. That’s because Florida has a law called the Wrongful Death Act, which restricts who can bring a medical malpractice case for the loss of a family member to (1) Surviving spouse or (2) Surviving children UNDER the age of 25.

With no surviving husband or wife, and even if there are 10 children who are grieving the loss of their mom or dad, if they’re over 25, no case.

Florida is one of only a couple of states in the country that restricts medical malpractice wrongful death cases like this. The reactions I get from the families is disbelief and “How can that be?” It can be because the medical lobby is strong in Tallahassee and the Florida legislators agree with whoever contributes the most to their campaigns for re-election.

Is there a solution to this? Short answer: Not in the foreseeable future. The courts have upheld this law and the only way to get it changed is through the legislature, which isn’t likely to happen. So Florida law continues to prevent families from seeking justice for the loss of their loved ones through medical malpractice. This allows doctors and hospitals to get away with malpractice with no consequences. It’s not fair, but that’s what we have to live with.

Now, this law is for medical malpractice cases only and doesn’t apply to wrongful death cases due to nursing home or assisted living negligence. That’s a whole different statute, and any family member is allowed to bring a wrongful death case against a nursing home for the loss of their loved one. The problem with nursing home cases is that the law doesn’t require nursing homes to have very much insurance for these cases, and the insurance policies of the nursing homes often used their policy limits to pay for lawyers to fight these cases, leaving nothing for the families.

Welcome to Florida.