As a wrongful death attorney in Tallahassee, Florida, I often see cases where a negligent person escapes liability for killing somebody because the wrongful death statute doesn’t allow the deceased person’s relatives to pursue the claim. Under Florida’s Wrongful Death Act, if the deceased person is over twenty-five and has no spouse and no children, neither the deceased person’s parents nor siblings will have the right to bring a cause of action for the pain and suffering caused by the wrongful acts of the killer. The deceased person’s estate will be able to recover for medical bills and for the deceased person’s pain and suffering, but in a wrongful death action the deceased person’s death is often instantaneous, which means the pain and suffering is minimal. In a situation where the deceased person has no spouse and no children, nobody can obtain compensation for the pain and suffering of the rest of the family. This is even worse in a medical malpractice case, where adult children of deceased parents are not allowed to bring a claim for the wrongful death of their parents. I’ve listened to an adult child of a deceased person call me asking if she can bring a cause of action against a negligent doctor, and I was forced to answer “no,” despite knowing that the caller’s pain and suffering was the direct result of a doctor’s carelessness. If a twenty-six year old’s only living parent is killed by a surgeon who operated while drunk and high, the twenty-six year old will have to suffer the early loss of a parent with no compensation. Mourning families have a very difficult time putting such an injustice behind them. Their pain and suffering is real, and without closure or a feeling that justice has been served, the suffering doesn’t diminish with the passage of time.

Not only does it fail to address important injustices, the Florida’s Wrongful Death Act actually encourages people to kill. If a surgeon commits negligence in the operating room and knows that his negligence will leave the patient brain damaged or paralyzed, the surgeon might be facing the possibility of a huge medical malpractice case. However, if the patient has no spouse and no children under twenty-five, the surgeon could escape the possibility of a huge case against him by letting the patient die on the operating table. Of course, the surgeon would face murder charges if anybody ever found out this happened, but it might be difficult to prove exactly what went on in the surgeon’s mind. However unlikely this scenario, it is not out of the realm of possibility, and there may be other more likely scenarios where a person is inclined to kill or let somebody die in order to escape personal liability. This is a problem that needs to be addressed by the Florida Legislature.

Jimmy Fasig