When a loved one dies following a preventable medical error, people often seek help from an attorney. Unfortunately, Florida’s Wrongful Death Act and medical malpractice act cause potential problems that could destroy a case before it even begins.
What is the Florida Wrongful Death Act?
In the event of a suspected wrongful death, Florida’s wrongful death statute provides guidelines for who can bring a defendant to court. Typically, when someone dies as a result of another’s negligence, the survivors can file suit for the death of their loved one. These survivors ordinarily include a spouse and children of the deceased (regardless of their age).
Unfortunately, when dealing with medical negligence, things are different. The medical malpractice act specifies that if an adult over the age of 25 dies without a spouse or minor children (defined as children under 25 years old), no other family member can recover damages for pain and suffering after a wrongful death in a medical setting. What this means is that if you suspect a loved one died due to medical negligence, you can only file a malpractice lawsuit if you are the spouse or child under 25 of the victim.
Many people don’t find this out until after a loved one has died, and they learn that they have no legal recourse under the current legislation. It’s important to note that Florida is the only state in the country with such a law, which some say amounts to a “free kill exemption” for doctors. Many in the medical industry find this term offensive, but the fact remains that a deceased patient with no spouse or minor children poses no financial liability to the doctor or healthcare facility.
Alternatively, if the same medical practitioner were to kill a person with their vehicle, an adult child could still recover from the loss of their loved one. This creates an inexplicable contradiction between a medical practitioner killing someone on the road, versus killing them on the operating table.
Florida also has a large population of widowed seniors, unmarried college students, and middle-aged single and divorced individuals whose children are over 25. For this reason, it’s estimated that more than half of Florida’s population falls into this “free kill” category.
How Did the “Free Kill Law” Come To Be?
How did Florida become the only state with such a problematic loophole in its wrongful death statutes? In 1990, the legislature changed an existing statute to allow adult children and parents of an adult child to bring wrongful death lawsuits in non-medical negligence cases—a right they didn’t have before. However, medical negligence was specifically excluded.
At the time, proponents of this legislation argued it was necessary to reduce healthcare costs in the state by lowering insurance premiums for doctors and healthcare facilities. They thought this would bring more qualified physicians and other healthcare workers to the state.
Unfortunately, this has had the opposite effect. While healthcare costs continue to rise in Florida, along with the rest of the country, many providers who are sued for malpractice in other states move to Florida where they will be at lower risk of future lawsuits. Meanwhile, the state’s Medicare and Medicaid systems are not paid back for treatment in situations where no one has been able to prove medical negligence.
Many Florida residents who are aware of the loophole feel it is unfair and unconstitutional, and some say it amounts to ageism or outdated ideas about what a family unit looks like. Essentially, many people are angry that the state believes their lives have no value if they don’t have a spouse or young children.
In 2000, a case was brought to the state Supreme Court alleging “unequal protection” under the law for the adult children of a deceased patient. However, the Supreme Court upheld the constitutionality of the law, claiming it was necessary to improve healthcare access in the state. In February of 2018, an amendment to change the statute was proposed in the Florida house, but ultimately, the proposal was shelved.
The Florida Medical Rights Association says that politicians are simply too afraid of powerful insurance companies to do anything about the Wrongful Death Act, dubbed the “Free Kill Law.” Nevertheless, the public can fight back by hiring personal injury law firms like ours.
If you or a loved one was seriously harmed by a medical professional’s negligence in Florida, or if you have any questions regarding a potential malpractice claim or wrongful death action, Miller Trial Law can assist you.
The personal injury lawyers at Miller Trial Law work closely with victims and families who have been hurt due to the negligence and neglect of another person or party. If you have been hurt in a car accident, truck accident, slip & fall accident, or due to medical malpractice, or nursing home neglect, you are not alone. We may be able to help you seek damages from negligent parties, negotiate with insurance companies, and more. If you’ve been hurt in an accident, you may have the right to seek compensation for your medical costs, rehabilitation expenses, lost wages, and pain and suffering. However, you may only have a limited amount of time to make a claim under the law. Contact Miller Trial Law today and learn how our personal injury lawyers may be able to help you.
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