Kurzban Kurzban Tetzeli & Pratt | Attorneys At Law

Unjust Florida law allows legal recoveries for some, but not for all

On Behalf of | Jan 4, 2021 | Wrongful Death |

John was the manager of a local restaurant. He and his fiancée were saving up to buy a house, get married and settle down. An unfortunate and preventable tragedy shattered these dreams when John went to the emergency room for a severe nosebleed. Due to the doctors’ negligence, John passed away, even though his condition would have been very easily treatable had they given it the attention it required.

John’s parents brought a lawsuit and tried to recover compensation for their pain and suffering. Sadly, the Florida Wrongful Death Act prevented them from recovering anything, because of a section in the Act that prevents the parents of an adult victim from recovering when the death was due to medical negligence. If John’s death had been caused by a car accident, or any other type of accident, his parents would have been able to receive compensation for his death.

The Act’s limitation on recovery was intentional

This unjust result is not an accident. Florida’s legislature specifically designed the Wrongful Death Act that way. The reason the legislature carved out this restriction on recovery for medical negligence is because they thought that it would help balance out Florida’s ever-increasing costs of health care.

The Florida Supreme Court has upheld this reasoning several times, arguing that by limiting the number of people who can recover for medical negligence, they are preventing the insurance companies from having to charge doctors more for coverage. This, in turn, means that the doctors would not have to charge their patients more for medical services. The Legislature and the Court justified the Act’s restriction by saying that there was a medical malpractice crisis in Florida that they had to compensate for.

It creates a separate class of citizenry

The restriction that the Act establishes is a violation of the Equal Protection Clause of Florida’s constitution. Equal Protection means that all citizens must have the same protection by the laws and must have the similar outcomes when faced with similar circumstances in court.

What the Act does is create an arbitrary distinction between two separate classes of victims, based on how they died. If the cause of their death was medical malpractice, their parents cannot recover for pain and suffering. But if the cause of death was something else, they can. This change in outcome based on a factor outside of the victim’s control is an unconstitutional injustice that the state of Florida must remedy.

Change is on the horizon

There is good news, however. Recently, a case called Estate of McCall v. United States changed the way the Florida Supreme Court interprets the justification for the Act’s restriction on recovery for medical negligence. In the McCall case, the Court established that the evidence does not support the idea that there is a medical malpractice crisis. This basically means that the justification for the Act no longer exists.

If the courts of Florida were to hear the right case, they could hold – once and for all – that the restriction on recovery for medical malpractice in the Act is a violation of Florida’s constitution. If that were to happen, then people like John’s parents would finally be able to sue for pain and suffering compensation associated with the death of their loved one. The state of Florida can finally remedy this injustice if the right lawsuit comes along.



FindLaw Network