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One of the hardest things I have to do in my profession is advise potential clients that Florida’s laws do not compensate them for the loss of a loved one. Recent developments in the law are making this task something I regretfully perform, far too often. Consider the following two fictitious cases that result in death and decide whether you think the law is fair. The Car Crash: Sally dies in an automobile accident when she is stopped at a red light and rear-ended by a large truck that is speeding and owned by a large, national company. Widowed, she is survived by her two children. ages 26 and 35. The Medical Malpractice: Jane dies when her doctor operates on the wrong kidney, she gets and infection and the hospital, owned by a large, national hospital chain, gives her an antibiotic to which her chart prominently warns she is allergic. Widowed, she is survived by her two children, ages 26 and 35. Sally’s children can sue for their emotional distress occasioned by the loss of their mother. Jane’s children can’t. Why?

It’s a one-line law that says that children over the age of 25 do not have a claim for wrongful death when their parents die as a result of medical neglect. This leaves most adult children without a remedy. Children 25-years-old and younger can make a claim. This often results in situations where some siblings have a claim and their older brothers and sisters do not. It also puts doctors and hospitals in a safe zone. Medical mistakes made on older widows and widowers don’t carry the same civil sanction as mistakes made on younger adults and children. No matter what you think of our civil justice system, if you are one of many who believe it provides incentives to make life safer, it’s not so with medical malpractice. Quite the opposite-with older people, there is no civil down stroke to treating them below the standard of care. There are other caverns of inequity in the law.

Consider another fictitious example. A horrible accident occurs on the Sawgrass Expressway and University Drive. Two passengers, Jim and Tim, with identical neck injuries are placed on backboards. Two ambulances arrive. Jim gets taken to a private hospital. Tim to a public. Each hospital commits flat out. glaring. Medical malpractice failing to diagnose brain stem injuries which swell, causing identical. permanent spinal cord injuries. Jim and Tim lose the use of their limbs for the rest of their lives. over which. Their medical expenses are projected into the tens of millions of dollars.

Putting aside the non-economic damages for a moment. the economic damages. including lost wages and medical expenses to which Tim and Jim’s families would ordinarily be entitled, are capped for Tim at $100,000. He was injured by an agent of the state of Florida and subject to its sovereign immunity cap of $100,000. Jim and his family, on the other hand, are limited only by what a jury believes is fair and reasonable. Jim’s family gets compensated for all of his medical bills and all of his lost income over his pre-accident life expectancy. Tim’s family doesn’t even get enough to cover the medical expenses he’ll incur in the first week of care. Fair, huh? And then there are the non-economic damages compensation for physical and emotional pain and lost enjoyment of life. Tim’s $100,000 cap is for both economic and non-economic damages. Jim’s noneconomic damages are capped at $1,000,000, including the claims of his wife and children, who now live without Jim’s comfort and society. It doesn’t matter how many doctors or hospital employees deviated from the standards of what their peers would and should have done in the same situation, had they acted reasonably. Non-economic damages in medical malpractice are statutorily capped at $500,000, but. because Jim’s injuries are catastrophic, his cap is one million.

But, there’s hope. If the auto accident that hurt Jim and Tim was caused by an at fault driver; and if that driver has enough insurance, Jim and Tim can receive full compensation, including any damages caused by the malpractice (which, but for the automobile accident would not have occurred). But, Oops! Another cavern awaits our poor Jim and Tim.

The accident was caused by two vehicles-one owned by the South Florida Water Management District (part of the state of Florida) and another by the National Park Service (owned by the United States of America). Each was half at fault. Unlike the State of Florida, the federal government does not limit the amount of damages Jim and Tim can receive when the United States or one of its departments causes injury or death. Their full measure of damages are collectable. So. Because the Federal government was half at fault. Jim, Tim and their families can get one half of their total damages, without any caps whatsoever. Against the state, however. they can only collect $100,000 of the other ha f of their damages.

Two years ago, if there were two negligent drivers whose conduct combined to cause injuries to another driver or his passenger, the economic damages suffered by each victim in excess of $25,000 would be the responsibility of both defendants, no matter how much responsibility they bore for the accident. This concept. known as joint and several liabilities. was abolished. Before, under our Jim and Tim example, even though the South Florida Water Management District was half at fault, the United States would be responsible for paying all of the economic damages over $25.000. so that Jim, Tim and their families, who were completely without fault for the accident, would not have to bear the financial consequences of someone else’s neglect. Not so today. The United States would only pay its share of the liability; and the innocent victims and their families would have to make do without the other half of their damages for one simple reason-Florida doesn’t want to pay when it hurts people.


These laws exist-why? Because they are fair to the victims? Because they reduce medical malpractice premiums? Because Florida can’t afford insurance to pay for the damages it causes? No. Because the people who we vote for in Tallahassee want it this way in order to protect the industries that pay for their campaigns. Fair, huh?