Wrongful death medical malpractice

[Joseph Edwards]

Jurisdiction

Florida

My mom was admitted into an emergency room in Florida. I had found her laying next to her bed. She was having trouble breathing and had slurred speech, where you really couldn't understand her. Her blood pressure was extremely high. They diagnosed her with COPD and atriala fibrillation. They intubated her, stabilized her and got her stable. We asked if they were going to do a CT scan and they said they weren't. The next morning they took her off the sedation and she still didn't wake up. They also put her on heparin the meantime (a serious blood thinner). Again we asked about a CT scan and were told they didn't want to expose her to extra radiation. When her night nurse came in he felt it was strange that she still hadn't woken up, so he pushed for them to order a CT scan. The CT scan revealed that she had a stroke and a brain bleed. Obviously had they done the CT scan in the emergency room, like they should have, they never would have given her a blood thinner. Also this basically lead to her not being treated for the stroke for 36 plus hours after being in the hospital. Ultimately my mom did end up passing away. We consulted an attorney, but they said we have no case because Florida has a law saying that adult children can't sue over the loss of a parent for medical malpractice if they are over the age of 25. They did say had any one of her 4 sons been 25 or younger it would have most likely settled for a lot of money. I'm just confused how Florida can have a law that seems unconstitutional. I mean the Florida constitution in Article 1 SECTION 21 Access to courts.—The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.
This seems to mean that we should be able to sue and the other law is unconstitutional. I'm sure other people have pursued this avenue, I was just curious if anyone had any other suggestions. I mean this just doesn't seem right. If the same doctor had been drunk and ran my mom over, we could sue for wrongful death, but because they are in a hospital they get protected by an unconstitutional law.

 

[army judge]

Ultimately my mom did end up passing away.

Please accept my sincerest condolences upon the loss of your beloved mother.

I pray you are grieving in peace as you remember her time with you, and mourn her passing.

I'm just confused how Florida can have a law that seems unconstitutional. I mean the Florida constitution in Article 1 SECTION 21 Access to courts.—The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.

You can discuss your concerns with YOUR elected FL state legislators, governor, ot organize a grass roots group to air your grievances.

If the same doctor had been drunk and ran my mom over, we could sue for wrongful death, but because they are in a hospital they get protected by an unconstitutional law.

An existing law isn't unconstitutional because you or I dislike it.

You, however, have the constitutional right (and duty as a son) to discuss the matter with a lawyer or two in your state.

You can even engage a lawyer to take this matter up with the courts, or as suggested above, take your concerns to your elected state legislators and governor.

 

[PayrollHRGuy]

The lawyer is correct. But there is an exception. Was your mother married?

768.21 Damages.—All potential beneficiaries of a recovery for wrongful death, including the decedent's estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:
(1) Each survivor may recover the value of lost support and services from the date of the decedent's injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income available for distribution to the particular survivor, and the replacement value of the decedent's services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.
(2) The surviving spouse may also recover for loss of the decedent's companionship and protection and for mental pain and suffering from the date of injury.
(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.
(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.
(5) Medical or funeral expenses due to the decedent's injury or death may be recovered by a survivor who has paid them.
(6) The decedent's personal representative may recover for the decedent's estate the following:
(a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered:
1. If the decedent's survivors include a surviving spouse or lineal descendants; or
2. If the decedent is not a minor child as defined in s. 768.18(2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent.
(b) Medical or funeral expenses due to the decedent's injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5).
(c) Evidence of remarriage of the decedent's spouse is admissible.
(7) All awards for the decedent's estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims.
(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

I mean the Florida constitution in Article 1 SECTION 21 Access to courts.

 

[Zigner]

(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

What about that?

 

[army judge]

The tip-off here is the law firm the OP consulted declined to move forward.

If a buck can be made, no lawyer I have ever known STILL actively practicing law would decline to pursue a viable case.

Unfortunately, the law firm knew their hands were tied statutorily.

 

[Joseph Edwards]

The confusing part is, my brother has a friend that is a lawyer for insurance companies. He mentioned to my brother that we should seek an attorney because it would easily be settled out of court for 7 figures.
And army judge, I understand an existing law isn't unconstitutional because I don't like it. An existing law is unconstitutional when it goes against the Constitution. Both Florida's constitution and the United States constitution give rights to go to court to settle matters such as this. Now with that being said, we have many laws that are borderline unconstitutional, and unfortunately it's all up to the interpretation of those in power now.

Anyway, thank you for your responses. I guess I was hoping that there might be a loophole, like discrimination against age or the right to be able to at least take it to court like Article 1 section 21 of the Florida constitution states everyone has a right to do.
Side note, just because it's a law does not make it constitutional. Florida also has a medical malpractice limitation on what can be awarded, but the Florida supreme court deemed that it was unconstitutional to limit an awarded amount.

 

[zddoodah]

I'm just confused how Florida can have a law that seems unconstitutional. I mean the Florida constitution in Article 1 SECTION 21 Access to courts.—The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.
This seems to mean that we should be able to sue and the other law is unconstitutional.

No. Your interpretation of the constitutional provision you cited implies that the state can impose no limitations on any legal claims. For example, under your interpretation, if a child calls another child a "poopy pants," the "victim" would be able to maintain a lawsuit. Your interpretation would result in an absurd glut of lawsuits that the courts would never be able to handle.

With that said, I think you may have gotten some bad information or misunderstood what you were told. Section 768.20 of the Florida Statutes provides that a wrongful death "action shall be brought by the decedent's personal representative, who shall recover for the benefit of the decedent's survivors and estate all damages, as specified in this act, caused by the injury resulting in death."

Section 768.21(1) provides that "[e]ach survivor may recover the value of lost support and services from the date of the decedent's injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value." Section 768.21(3) provides that "all children of the decedent if there is no surviving spouse, may . . . recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury." There is no limitation or restriction relating to the age of the decedent's children (but see the discussion below regarding subsection 8).

However, medical malpractice cases are difficult and expensive to litigate. That means the plaintiff needs to be willing to pay the attorneys' hourly rate, plus expenses (including expert medical witnesses), or the attorney will need to be willing to handle the case on contingency. Unless you have tens of thousands of dollars that you can plunk down for a retainer, you'll need to find an attorney willing to work on contingency. That means the attorney has to consider whether the likely value of the case, coupled with the risk of losing, makes it worthwhile. In the world of wrongful death, the best decedent is a high earning person who is married and has young minor children to support. The worst possible decedent is an unmarried, elderly person with relatively little income and no dependents. While you didn't say how old your mother was or whether she was married, I think your post implies that she was fairly elderly and not married. Your post also indicates that she had no dependents. That means a case for her wrongful death probably isn't financially lucrative for an attorney being asked to work on contingency.

(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

What about that?

Interesting.... In my view, subsections 3 and 8 are impossible to harmonize. If the "damages specified in subsection (3) [are] not . . . recoverable by adult children," then what does the reference to "all children of the decedent if there is no surviving spouse" mean or add to the law? I think one would need to do some case research to see if the Florida courts have made any attempt to harmonize these two apparently conflicting provisions.

Regardless, even if subsection 8 trumps subsection 3, the law does not violate the state Constitution and, even if it did, the practical issue I discussed above still exists.

 

[Zigner]

Interesting.... In my view, subsections 3 and 8 are impossible to harmonize. If the "damages specified in subsection (3) [are] not . . . recoverable by adult children," then what does the reference to "all children of the decedent if there is no surviving spouse" mean or add to the law? I think one would need to do some case research to see if the Florida courts have made any attempt to harmonize these two apparently conflicting provisions.

It's quite possible that the law was amended at some point.

Regardless, even if subsection 8 trumps subsection 3, the law does not violate the state Constitution and, even if it did, the practical issue I discussed above still exists.

YepYep

 

[army judge]

Anyway, thank you for your responses. I guess I was hoping that there might be a loophole,

Contrary to popular misconception and urban myth, our legal system offers no loopholes for anything or anyone.

What our law does offer is an opportunity to take any matter to court and litigate it peacefully, rather than dueling, squawking, arguing, fighting, killing, etc...

Our system of laws allows something, or prohibits something, at least that was the case until very recently. Nevertheless, loopholes are nonexistent, because if one can do something legally, or is prohibited from doing something, that is merely the wisdom of our founders and our system of laws that surround us from harm.

 

[Tax Counsel]

I mean the Florida constitution in Article 1 SECTION 21 Access to courts.—The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.

That provision simply means that the state cannot bar any person from going to court to pursue a legal claim that he or she has. But you to look to other laws to determine whether or not you have a claim.

Here, I think your mother's estate might have a claim, even though you personally do not. Who is the personal representative of her estate? That person might want to consult a personal injury lawyer about the estate bringing a claim.