People do not die for us immediately, but remain bathed in a sort of aura of life which bears no relation to true immortality but through which they continue to occupy our thoughts in the same way as when they were alive.
– Marcel Proust

Wrongful Death

In Florida, any claim alleging that a death was proximately caused by a negligent act is governed by Florida Statutes §768.16 - §768.27. Wrongful death cases can be very complex, especially when based on claims of medical negligence. Typically, a wrongful death lawsuit is brought by the court appointed personal representative of the decedent’s estate for the benefit of those individuals identified as the decedent’s statutory survivors.

In addition to evaluating the merits of the claim, the attorneys at Levine & Glassman can assist in filing court documents appointing an appropriate personal representative to the decedent’s estate. Further, we will obtain all of the necessary records needed to evaluate the claim, and, if necessary, we will retain the appropriate experts to help prove the causation nexus between the death and the allegations of negligence.

When you contact Levine & Glassman, one of our attorneys will discuss your potential claim, and explain some of the critical legal issues which must be evaluated prior to filing a lawsuit. Some of the most important considerations in evaluating your potential wrongful death claim include:

1) Statute of Limitations:

There are many factors that could affect the filing deadline for a wrongful death case. Typically, the filing deadline is determined by the underlying allegations. No matter what deadline applies, it is imperative that any wrongful death claim is evaluated by an attorney with the appropriate experience and knowledge. Failing to file a wrongful death case prior to the expiration of the statute of limitations will likely result in the claim being forever barred.

2) Identifying the Appropriate Statutory Survivors:

Typically, only a decedent’s spouse and minor children are statutory survivors entitled to recover damages pursuant to a wrongful death case in Florida. Further, the parents of a deceased minor child are considered statutory survivors. In the absence of a surviving spouse or minor children, adult children of the decedent or any linear descendant of the decedent may be entitled to recover limited damages.

Under Florida law, there is no cause of action for wrongful death when the decedent is an unmarried adult without any linear descendants. However, on rare occasions, a “survival action” may be available which would seek damages for the decedent’s pain and suffering between the time of the injury and the time of his or her death. Such a cause of action is typically only pursued when the manner of death was prolonged or particularly agonizing.

3) Causation Issues:

The death of an individual who suffered personal injuries due to the negligence of another does not, in itself, create a claim for wrongful death. Rather, to bring a wrongful death claim, it is the Plaintiff’s burden to prove that the alleged negligence caused, or contributed to cause, the decedent’s death. Without this connection between the negligent act and the cause of death, the decedent’s statutory survivors will not have a cause of action. However, the personal representative may pursue a “survival action” on behalf of the estate, but, typically, the recoverable damages are limited.

4) Damages:

In a wrongful death action, the recoverable damages are strictly limited to those authorized by statute. In general, the surviving spouse and minor children are entitled to pain and suffering and loss of consortium. Further, if there is a surviving spouse or any lineal descendant, the decedent’s prospective net accumulations are recoverable. Also, medical bills and funeral bills related to the injury and related death are recoverable.

5) Medical Liens:

If the costs of medical care provided to the decedent is recovered by the estate, it may be necessary to repay the medical expenses to the decedent’s health insurance company. Typically, the medical lien will be subject to negotiation.

Wrongful death cases are typically complex as there are many variables involved. Contact Levine & Glassman, and one of our attorneys will evaluate your potential lawsuit, explain the process of pursuing a wrongful death claim, and answer any other questions you may have.