Who Has the Right to File a Medical Malpractice Lawsuit in Florida?
Injuries stemming from medical malpractice can be devastating not only to the victim but to the whole family. Family members often experience significant suffering along with the victim and often must sacrifice employment to provide care.
No one should bear these costs when a health care provider’s negligence is responsible. However, Florida’s laws restrict who can sue for medical malpractice.
Patients
If you are the victim of medical malpractice, you have the primary right to file a medical malpractice claim so long as you have the mental capacity to do so. An experienced medical malpractice lawyer can do all of the work for you so you can focus on recovery. Our compassionate Florida medical malpractice attorneys offer home and hospital visits so you can start your claim without leaving home.
Spouse
Florida case law allows husbands and wives to sue for loss of consortium when a spouse’s injuries adversely impact the marital relationship. It includes the loss of any combination of the following:
- Companionship
- Sexual relations
- Comfort
- Protection
- Love and affection
- Solace
- Assistance
- Fellowship
You can file for loss of consortium in the same action as your injured spouse. To pursue a claim, you typically file the lawsuit with your spouse as a co-plaintiff and specify that you are requesting these damages.
If your spouse died as a result of medical malpractice, you may also be entitled to recover damages in a wrongful death claim for the loss of your spouse’s probable lifetime income, loss of services, loss of companionship, and other financial and emotional losses.
Children
Florida Statutes § 768.0415 allows unmarried dependent children to recover damages in medical malpractice negligence claims for the loss of their parent’s services, companionship, protection, and society, but only if the parent’s injury is permanent and results in total disability.
However, if the medical malpractice has resulted in death, children under age 25 can recover damages for lost parental companionship, loss of guidance, and mental pain and suffering from the date of the injury. Children over 25 are prohibited from recovering damages unless there is no surviving spouse. However, even in this instance, Florida’s so-called “Free Kill Law” restricts them from recovering non-economic damages, such as grief and suffering, for the death of a parent from medical malpractice.
Any family member can recover damages for any funeral and burial costs they have paid.
Parents
If your unmarried dependent minor child is injured by medical negligence, you may be entitled to file a medical malpractice lawsuit for your losses and your child’s losses. Recoverable compensation may include such damages as the following:
- Medical expenses
- Added care costs
- Your family’s emotional distress
- Your child’s pain and suffering
- Your child’s lost earning potential
When medical malpractice results in death, the “Free Kill Law” generally limits parents’ recovery of non-economic wrongful death damages to those with children under 25.
Legal Guardians
If the party entitled to sue for medical malpractice is incapacitated or a minor, a legal guardian can file suit on their behalf.
Children under 18 cannot file their own claims. Natural and adoptive parents are typically the guardians, but if your settlement is higher than $15,000, the court may appoint a guardian ad litem to represent the child’s interests. The law requires it in most cases where the settlement exceeds $50,000.
An incapacitated adult is someone whom the court has determined to be incapable of managing their own affairs to some degree. The Florida legislature recognizes that incapacitated adults should be able to assert their rights to the same degree as anyone else. An incapacitated adult may require a guardian to bring suit on their behalf.
A guardian may be a family member or other designated individual, but they must petition the court for guardianship. If no one is willing or able to perform this function, the court may appoint a public guardian through the Office of Public and Professional Guardians.
Estate Representatives
Although the law allows various family members to receive damages when medical malpractice results in death, the personal representative of the deceased must file the wrongful death action on behalf of the estate. The personal representative is usually the executor named in the will or a court-appointed representative.
