Florida Injury Attorney Blawg
Who can be compensated and the types of damages that are available when a person dies through the wrongful act or negligence in Florida of any person or company is prescribed by statute in the “Florida Wrongful Death Act,” sections 768.16 through 768.26. The chart below is a breakdown of section 768.21.
Wrongful Death claims are brought on behalf of statutory “survivors” by the Personal Representative of the decedent’s estate. The Personal Representative, typically a family member and often a survivor, is appointed by the court after due notice is given to all interested parties. The Personal Representative hires the attorney who will bring a claim to recover damages for the decedent’s estate and survivors. Florida wrongful death attorneys handle these cases on a contingent basis, meaning that attorney’s fees are paid only after a successful recovery has been made in the case. The standard within the legal industry is for the fee to be a percentage of the overall recovery, rather than being based on an hourly rate.
Who may recover under the Act and to what extent varies according to the circumstances of each case and can be confusing. There have been many legal challenges to the Act, yet it has survived all challenges essentially intact. At this point in time, it will take action from the Florida Legislature to change the Act.
The goal of this blog is to make the Act understandable. The chart shows the types of damages that can be recovered and by whom. Many of the variations and exceptions are counterintuitive and unfair. For example, a surviving spouse will preclude the recovery of any damages by the decedent’s parents. In addition, the Act gives special consideration to medical providers, in some instances putting them beyond the reach of the law for causing death by medical negligence/malpractice.
Spouse Dies – Surviving Spouse but no Surviving Children
Spouse’s Damages:
- Loss of Decendent’s Companionship and Protection
- Mental Pain and Suffering from date of injury
- Loss of Support and Services from date of injury to date of death (w/ interest)
- Future Loss of Support and Services from date of death (at present value)
- Medical and Funeral Expenses due to decedent’s injury/death if paid by survivor
Spouse Dies with Surviving Children and Surviving Spouse
Spouse’s Damages:
- Loss of Decendent’s Companionship and Protection
- Mental Pain and Suffering from date of injury
- Loss of Support and Services from date of injury to date of death (w/ interest)
- Future Loss of Support and Services from date of death (at present value)
- Medical and Funeral Expenses due to decedent’s injury/death if paid by survivor
Children’s Damages:
- Loss of Support and Services from date of injury to date of death (w/ interest)
- Future Loss of Support and Services from date of death (at present value)
- Minor children only (under the age of 25 – Section 768.18(2) Florida Statutes), or all children if there is no surviving spouse, may also recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury
Parent Dies with Surving Children but no Surviving Spouse
Surviving Children:
- Loss of Support and Services from date of injury to date of death (w/interest)
- Future Loss of Support and Services from date of death (at present value)
- All children may recover loss of parental companionship, instruction, and guidance and mental pain and suffering from date of the injury
Child Dies with Surviving Parents but no Surviving Spouse or Children
Parents’ Damages for loss of minor child:
- Mental pain and suffering from date of injury
- Medical and funeral expenses due to decedent’s injury/death if paid by survivor
Parents’ Damages for loss of adult child:
- Mental pain and suffering from date of of injury (so long as there are no other survivors)
- Loss of Support and Services from date of injury to date of death (w/ interest)
- Future Loss of Support and Services from date of death (at present value)
- Medical and funeral expenses due to decedent’s injury/death if paid by survivor
Personal Representative’s Damages for all cases
- Loss of earnings of the decedent from the date of injury to the date of death, less lost support of the survivors excluding contributions in kind, with interest
- Loss of prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered if (a) the decedent’s survivors include a surviving spouse or children; or (b) if decedent is not a minor child (under age 25), there are no lost support and services recoverable, and there is a surviving parent
- Medical or funeral expenses due to decedent’s injury or death that have become a charge against decedent’s estate or that were paid by or on behalf of decedent, excluding amounts recoverable by a survivor who has paid those expenses
Important Exceptions to the above elements:
- Adult children cannot recover for lost parental companionship or pain and suffering in medical malpractice claims
- Parents of a deceased adult child cannot recover mental pain and suffering in medical malpractice claims
If you, like I, see no valid reason for these exceptions, let your Florida legislators know that you would like to see them eliminated.
(This excellent chart was prepared by Florida Attorney Matthew D. Levy)
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Contact us toll free at 866-785-GALE or by email to learn your legal rights.
Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.