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Can I file a wrongful death lawsuit against a medical professional?

by | Jun 15, 2021


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.

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