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Florida Supreme Court & State Lawmakers Reviewing Law Limiting Who Can Sue for Medical Malpractice

Wooden judge gavel and stethoscope on table, malpractice concept

We trust our doctors and other medical professionals to make educated, sound judgments regarding diagnoses, treatments, and medical procedures.  When a medical professional acts negligently, the consequences are often severe:  We can lose a limb, an eye, or the function of an organ.  Medical mistakes are often fatal, leaving the family of a deceased patient in dire straits emotionally and financially.  Florida law sets limits on who is permitted to bring a medical malpractice lawsuit, and many claim that these limits are not only unfair; they are unconstitutional.  The Florida Supreme Court is currently fielding a challenge to the state’s medical malpractice law, while the Florida legislature is simultaneously deciding whether to take action to repeal the law.   

The Current Law

Florida Statute 768.21 lays out who may file medical malpractice lawsuits and the types of damages available.  Under the terms of the law, minor children of someone who is killed by medical malpractice may sue for a variety of damages, including non-economic damages such as lost parental companionship, instruction, and guidance, and mental pain and suffering incurred from the date of the injury.  Parents of minor children who are killed by medical malpractice may also sue for pain and suffering.

Section 768.21(8) sets certain limits, however, on who may recover which types of damages.  Under that subsection, adult children of deceased medical malpractice victims may not sue for pain and suffering or loss of parental companionship.  Moreover, parents of adult children who die as a result of medical malpractice are not permitted to sue for emotional pain and suffering.

The law also leaves out other categories of people who might be able to sue for malpractice in other states.  For example, siblings of deceased victims of medical malpractice cannot bring a lawsuit.  So, if someone is killed as a result of a doctor’s negligence, but that person has no spouse, surviving parents or children, then there is no one left to sue on their behalf.   

Challenges to the Law

Many in Florida feel the statute is unjust in its limitations.  Why should someone not be able to sue a doctor if their brother was killed by the doctor’s negligence?  Why can parents of adult children not recover for the mental anguish they suffer after their child dies, simply because their child is not a minor at the time?  Several challenges are now working their way through the courts and the legislature. 

Most recently, HB 6501 was introduced to the Florida state legislature in December 2019.  The bill would delete the provisions in section 768.21 that prohibit adult children of deceased parents, and parents of deceased adult children, from recovering those non-economic damages in wrongful death cases.

At the same time, the family of a victim of medical malpractice is currently fighting the law in court.  The family alleges that the law is unconstitutional and discriminatory.  A Florida appellate court agreed that the law appeared unconstitutional and discriminatory, and it has sent the case all the way to the Florida Supreme Court for review.

If you or a loved one has been the victim of medical malpractice in central Florida, you may be entitled to compensation for damages. Contact Rothenburg Law Firm today for more information and a free legal consultation.

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