Florida’s Wrongful Death Act recently came under scrutiny after a family shared their grief with the Sarasota Herald-Tribune after discovering an exception in the law. The story was later published in USA Today. The family was shocked to learn that they did not have the right to pursue a claim after their loved one’s death. Gerald Giannillo, a 51-year-old man, tragically passed away following a surgical procedure to repair an aneurysm and leaking heart valve. He was not married, and he did not have children under the age of 25, which meant that under Florida’s Wrongful Death Act, his surviving loved ones did not have the right to file a claim for medical malpractice.
What is a wrongful death claim?
If an individual passes away as a result of the negligence or misconduct of another individual or a company, there may be the option to file a wrongful death claim. After the death of a loved one, family members may seek this type of compensation in order to cover a variety of losses in the form of both economic and non-economic damages.
Who can sue for a wrongful death in Florida?
Under Florida’s Wrongful Death Act, a lawsuit for economic damages must be brought by a personal representative of the decedent’s estate. However, if the survivors wish to pursue non-economic damages, more commonly known as the pain and suffering damages, only certain family members have the right to do so under this law.
In wrongful death claims, the only parties who can make a claim for non-economic damages are legally married spouses, minor children under the age of 25, adult children when there is no surviving spouse and the parents of a deceased minor child. If there are no other survivors, then parents of a deceased adult child also have a claim. Spouses and minor children always have a right to make a claim for their pain and suffering.
However, survivors’ claims are even more limited when their loved one’s death was caused by medical malpractice. In medical malpractice wrongful death claims, only the legal spouse or minor children under 25 can bring a claim for pain and suffering or the non-economic damages for the loss of their loved one. Because the decedent in the Sarasota case had neither, his surviving family was not allowed to file a claim for non-economic damages.
In addition to who can file a claim, it is also important to know that the Statute of Limitations, or deadline to file a lawsuit, for a wrongful death is generally two years from the time of the incident that caused the injury or death. Therefore, it is important for representatives of the decedent’s estate and surviving family members to contact a wrongful death attorney as soon as possible. At Panter, Panter & Sampedro, we have handled wrongful death claims, including those that fall under medical malpractice. If you have any questions regarding this type of lawsuit, we invite you to schedule a free consultation by giving us a call at (305) 662-6178.