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Wrongful Death in a Medical Malpractice Case in Florida

An important wrongful death lawsuit was recently decided by the Florida Court of Appeal.  In this case a man and his wife filed an action for negligence, strict liability, and loss of consortium. While the case was pending, the husband died and the wife filed an amended complaint which included a claim for loss of consortium. The husband was injured prior to the date of the husband and wife’s marriage. The husband died from his injuries. The defendants filed a motion to dismiss the wife’s death claim, and argued that a spouse must be married to an injured party at the time of the injury to be eligible to bring a claim for loss of consortium. It was not disputed that husband was not married to his wife when the husband was injured. The lower court granted the defendant’s motion to dismiss and dismissed the Wife’s Complaint. The trial court entered a final judgment, and the Wife appealed. The Florida Court of Appeal ruled that a spouse who was not married to an injured party at the time of the injured parties’ injury may not recover consortium damages as part of a wrongful death suit.

A claim for wrongful death did not exist at common law. The Florida Legislature created an action for wrongful death. The purpose of the Florida Wrongful Death Act is to provide a cause of action. The purpose of the wrongful death act is to prevent a wrongdoer from avoiding liability when such wrongdoing results in death. The wrongful death act allows a wrongful death lawsuit to proceed after the death of the injured party.

Under Florida’s wrongful death act, the personal represen­tative can recover for the decedent’s survivors and estate all damages caused by an injury that results in death. Survivors include children, a spouse, and sometimes parents, blood relatives and adoptive brothers and sisters.

Damages may include future loss of support and services and the value of lost support and services. Lost support is based upon the amount of available probable net income, the survivor’s relationship to the injured party, and the replacement value of the injured party’s services. The joint life expectancies of the parties are utilized in computing the duration of future losses. Spouse may recover for mental pain and suffering and the loss of a spouses’ companionship .

To speak with a medical malpractice wrongful death attorney in Palm Beach Gardens contact Matthew Lane & Associates, P.A. at: (561) 651-7273.