Deaths caused by medical malpractice or hospital error are included under the statutory definition of “wrongful death,” which means that deceased person’s survivors and beneficiaries have the right to file a wrongful death lawsuit on behalf of the decedent. However, “filing a lawsuit” and “being a party to a lawsuit” are different. Under Florida law, only a decedent’s personal representative can actually file a wrongful death lawsuit. Additional beneficiaries may be included as parties to the lawsuit.
On the other hand, Florida’s so-called “Free-Kill” loophole (§768.21(8), Fl .Stat.) states that when medical malpractice causes a wrongful death, pain and suffering damages are only available to:
- a spouse,
- parent(s) of a minor child, or
- a minor child.
This Florida-specific provision effectively bars wrongful death actions filed on behalf of unmarried adults who have adult children because without pain and suffering damages the cost to litigate a malpractice case may be more than any potential recovery.