Many states, including Florida, have statutes that allow beneficiaries to file a suit and recover for the wrongful death of the decedent. A wrongful death claim is essentially a civil lawsuit that arises when the acts of one person (their negligence) causes the death of another person. In Florida, this statute (Fla. Stat. 768.19) specifically states that “when a person’s death is caused by the wrongful act, negligence, default or breach of contract or warranty,” the estate of the deceased person may bring such a lawsuit. In accordance with Fla. Stat. 768.19, a Florida wrongful death cause of action must be based upon the following elements:
The third element stands for the proposition that the decedent would have had an underlying cause of action to the wrongful death had he or she not been killed by the wrongful conduct.
Wrongful death suits can arise out of multiple different situations including defective or mislabeled products, automobile accidents, medical malpractice, workplace or occupational hazard and intentional criminal actions.
One example is when a piece of machinery malfunctions and then someone gets injured and later dies as a result. We have seen several wrongful death cases as a result of jet ski accidents, wherein the jet ski lacked proper safety devices. There are also thousands of claims brought each year against manufacturers due to the improper labeling of products and failure to provide express warnings of potential hazards or known dangers. For example, Johnson & Johnson has been the subject of ongoing litigation due to the link between talc powder and ovarian cancer which has allegedly caused deaths to consumers. The bottom line is when manufacturers produce and sell unsafe products to the general public they must be held accountable!
Another example is a car accident where one party sustains a fatality as a result of the negligence exhibited by an individual. We have handled wrongful death auto accident lawsuits related to reckless driving, distracted driving, speeding, driving while impaired along with fatality claims related to unsafe road conditions and construction on the roadway.
We generally retain an accident reconstructionist to assist our legal team in an auto accident fatality case. The reconstructionist will ascertain the exact mechanism of injury resulting in the death which is generally far more complicated than it sounds. Such experts are very expensive but well worth their price due to experience in demonstrating the cause of a particular car wreck and how it causally relates to the injuries sustained. Avoid law firms that lack the financial resources to afford an accident reconstructionist or lack the wherewithal to understand the importance of retaining one.
Wrongful death claims can also be pursued as part of medical malpractice claims such as when a physician or a mid-level provider prescribes medication without consulting patient’s pre-existing condition – and the patient dies as a result. Wrongful death claims can be brought against an individual physician or medical provider (i.e., hospital) for providing services that fall below the standard of care expected of such physician or provider. We often see such claims relating to birth related injuries resulting in death to the baby or mother. Oftentimes a doctor will fail to note a disorder such as hypertension, gestational diabetes, maternal infections, fetal distress or the presence of other issues which may complicate a normal delivery. Thus, the resulting medical malpractice action will focus on the physician’s (or medical provider’s) failure to diagnose a health condition. Such negligence can result in conditions including, cerebral palsy, developmental delays in the infant and more serious injuries including death.
In accordance with the Florida Wrongful Death Act, a personal representative of the decedent’s must file the wrongful death suit. Who the personal representative will be is determined by a person’s will or any other similar estate plan. In cases where the person died without a will, or intestate, and did not have any other estate plan, their personal representative will be appointed by the court in the jurisdiction of where the person lived. These lawsuits are generally filed on behalf of the estate and the person’s surviving family members. The person’s family members who will be entitled to recover are the person’s spouse, children, and parents or any other blood relative or adoptive sibling who is “partly or wholly dependent on the decedent for support or services.”
Under Florida’s Wrongful Death Act an individual may bring a wrongful death claim if they are related to the decedent as a:
Florida law also mandates when these lawsuits must be filed. This is called the statute of limitations. After the statute of limitations has passed, a suit can no longer be filed and all legal rights with respect to the filing of a wrongful death suit are extinguished. That time in Florida is four years. In a very specific set of circumstances, that time can be postponed.
If a wrongful death claim, settles before trial, a court may appoint a guardian ad litem and conduct a special court hearing to approve the settlement on behalf of the minor children. Typically, parties representing the plaintiffs and defendants as well as any guardian ad litem will attend the court hearing.
Florida law5 also sets forth specific categories of damages that can be recovered under the Wrongful Death Statute. According to Florida law, both the surviving family members and the estate can recover damages. The surviving family members can receive damages for the value of support and services the deceased person had provided to the surviving family member, loss of companionship and guidance provided to the family member, mental and emotional pain and suffering in cases where a child is lost, as well as compensation for any medical and funeral expenses any family member has paid for the deceased person. The individual’s estate can receive damages for lost wages, benefits, and other earnings, this includes the potential for future earnings as well, medical and funeral expenses that were paid by the estate, and the value the estate could reasonably have been expected to acquire if the deceased person had lived.
With respect to family members, spouses typically have claims for lost companionship of the deceased person and for that spouse’s emotional trauma that arose from the death. The decedent’s minor children can also be awarded damages for the lost benefits of their relationship with the deceased parent, including comfort and support. The only circumstances in which parents can recover are those where their child was still a minor and specifically for their emotional trauma and the lost relationship with the child. Parents of adult children cannot typically recover in many cases.
In certain cases, where there is intentional, reckless, and malicious conduct, punitive damages may also be awarded to the surviving family members. Punitive damages exist in order to punish a certain behavior, although there is a limit to the amount of punitive damages that can be recovered.
If you have lost a loved one because of the actions of another person or a third party, please contact our skilled and experienced attorneys at the Dolman Law Group. We can assist you with evaluating your case and determining what your legal rights are and whether or not you have a claim under Florida’s Wrongful Death Statute. Please call our office at 727-853-6275 today for a free consultation.
DOLMAN LAW GROUP – NEW PORT RICHEY OFFICE
5435 Main Street
New Port Richey, FL 34652
2 Florida Personal Injury Law And Practice West Florida Practice Series, 2017, Thomas Sawaya, pages 1081-1083