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Why are Florida Medical Malpractice & Wrongful Death Cases So Difficult to Litigate?

A couple hugs at a funeral

When a loved one dies following a preventable medical error, people often seek help from an attorney. Unfortunately, under the intersection between Florida’s Wrongful Death Act, and the medical malpractice act, cause potential problems that could destroy a case before it ever begins. Read on to understand why.

What is the Florida Wrongful Death Act?

The Wrongful Death Statute has guidelines for who can bring a defendant to court in the event of a suspected wrongful death. Ordinarily, when someone dies as a result of the negligence of another, the survivors can file suit for the death of their loved one. These survivors ordinarily include a spouse and children of the deceased (regardless of their age).

Unfortunately, when dealing with medical negligence, things are drastically different. The medical malpractice act specifies that if an adult over the age of 25 dies without a spouse or minor children (defined as children under 25 years old), no other family member can recover damages for pain and suffering after a wrongful death in a medical setting. What this means is that if you suspect a loved one died due to medical negligence, you can only file a malpractice lawsuit if you are the spouse or child under 25 of the victim.

Sadly many people don’t find this out until after a loved one has died, and they learn that they have no legal recourse under the current legislation. When Gerald Giannillo, 51, died following a heart operation, his mother and long-term girlfriend were shocked to find out that no attorney could take their case for this exact reason.

His girlfriend Tracey noted that they had discussed marriage, and had they known about this legal “loophole,” they would have made a point to get married before he had the surgery. Giannillo’s mother, Shirley Giannillo, says she isn’t concerned about financial damages, she just wishes there was some way to get an independent investigation into what went wrong with her son’s surgery.

It’s important to note that Florida is the only state in the country with such a law, which some say amounts to a “free kill exemption” for doctors. Many in the medical industry find this term offensive, but the fact remains that a deceased patient with no spouse or minor children poses no financial liability to the doctor or healthcare facility.

Alternatively, if the same medical practitioner were to kill a person with their vehicle, an adult child could still recover for the loss of their loved one. This creates an inexplicable contradiction between a medical practitioner killing someone on the road, versus killing them on the operating table.

Florida also has a large population of widowed elders, unmarried college students, and middle-aged single and divorced individuals whose children are over 25. For this reason, it’s estimated that more than half the state’s population falls into the “free kill” category.

Florida uses the legislature to protect doctors specifically from wrongful death lawsuits

How did Florida become the only state with such a problematic loophole in its wrongful death statutes? In 1990, the legislature changed an existing statute to allow adult children and parents of an adult child to bring wrongful death lawsuits in non-medical negligence cases — a right they didn’t have before. But medical negligence was specifically excluded.

At the time, proponents of this legislation argued it was necessary to reduce healthcare costs in the state by lowering insurance premiums for doctors and healthcare facilities. They thought this would bring more qualified physicians and other healthcare workers to the state.

Unfortunately, this has had the opposite effect. While healthcare costs continue to rise in Florida, along with the rest of the country, many providers who are sued for malpractice in other states move to Florida where they will be at lower risk of future lawsuits. Meanwhile, the state’s Medicare and Medicaid systems are not paid back for treatment in situations where no one has been able to prove medical negligence.

Meanwhile, many Florida residents who are aware of the loophole feel it is unfair and unconstitutional, and some say it amounts to ageism or outdated ideas about what a family unit looks like. Essentially, many people are angry that the state believes their lives have no value if they don’t have a spouse or young children.

In 2000, a case was brought to the state Supreme Court alleging “unequal protection” under the law for the adult children of a deceased patient. However, the Supreme Court upheld the constitutionality of the law, claiming it was necessary to improve healthcare access in the state. In February of 2018 an amendment to change the statute was proposed in the Florida house, but ultimately, the proposal was shelved after the committee chair called for a voice vote.

Melody Page, who formed the Florida Medical Rights Association to fight the Wrongful Death loophole, says that politicians are simply too afraid of powerful insurance companies to do anything about the law. She’s right. But, the public can fight back – by hiring personal injury law firms like ours.

How Craig Goldenfarb, P.A. fights back against negligence loopholes

Simply put, our attorneys are fierce litigators who aren’t afraid of taking on difficult cases. Attorney Spencer T. Kuvin, Esq. has won several medical malpractice cases in pre-suit, in mediation, at at trial. Most recently, Mr. Kuvin won a very large settlement for the family of a young boy who died from a severe and acute ailment after a doctor had failed multiple times to attempt to diagnose him.

Medical negligence and error are all around us in Florida. The problem is, the doctors and hospitals who provide care in our state are shielded by laws that financially and legally protect them from most civil complaints or lawsuits. We fight back by not being intimidated by that protection. We work hard to identify and provide what a doctor or health care provider did wrong (or what they didn’t do that resulted in injury) and we litigate with research, case law, theories of liability, experts, and our thorough understanding of the facts, allegations, and circumstances surrounding the case.

If you or someone you know was permanently injured or killed by the hands of a health care provider, do not hesitate to contact us. Statute of limitations in Florida are short, and you do not want to risk your rights under the law expiring.