Rights Of Children 25 And Older When A Parent Dies From Medical Malpractice

27 Jul 2007

July, 1999 - Tallahassee, FL - Florida's Wrongful Death Statute may unconstitutionally discriminate against children 25 and older whose parents are killed because of doctor or hospital misconduct. Because of an unusual "immunity" for the medical profession written into state statutes older children who would be entitled to full damages if a parent died in an automobile accident lose most of their rights if a doctor or hospital is responsible.

How can this be?

Under Florida law, children who are 25 years or older cannot seek court-awarded damages for emotional damage, pain and suffering if their parent dies in a case involving medical malpractice. Likewise, parents cannot claim the same damages if their son or daughter is over age 25.

Within the next few months the Florida Supreme Court is expected to determine whether the law is unconstitutional after hearing arguments recently in two cases.

One involves a South Florida woman whose 70-year-old mother died in what she says was a case of medical malpractice in surgery to remove a tumor. Under the law, she couldn't sue for emotional damages because she is 33 years old.

In another case, a Miami brother and sister, both adults, challenged the state law after their father died in an emergency room after suffering shortness of breath.

Theoretically, the idea is that people over the age of 25, many who live in their own homes and have jobs, are no longer dependent on their parents, according to legal experts. Attorneys who represent victims say the law is unconstitutional because it singles out one group of people, and it's an arbitrary discrimination that can't be justified on any reasonable basis.

Lawmakers based the exemption on a 1989 Department of Insurance study. If the law were repealed, it would lead to more lawsuits and higher medical malpractice insurance costs, it said. The study came during a "crisis'' during the late 1980s when medical malpractice costs were dramatically rising.

Other Florida courts have upheld the law. Attorneys arguing for hospitals being sued argue that rising insurance costs is a legitimate reason to exempt adult children from seeking non-economic damages.

Many argue that those findings were flawed, irrelevant and not reasonable and were based on outdated material, the justices were told during oral arguments. "The lawmakers' job is to protect the people of Florida'' said Bonnie Strickland, a St. Petersburg activist trying to change the law. "This law protects the insurance and medical community.''

For years, adult children have been unable under Florida law to seek damages for their parents' death due to medical malpractice, said Neil H. Butler, general counsel for the Association of Community Hospitals and Health Systems, which filed court briefs in the case.

Adult children, and parents of grown children who died from medical malpractice, can seek court-awarded damages for lost wages, funeral expenses and similar claims. Also, adult children, such as those who are handicapped, can sue for emotional damages if they are dependent upon their parents.

The medical malpractice issue gained attention around 1990, when the Legislature revamped the state's wrongful death laws yet kept the exemption in place. "The carve-out was a political accommodation to the medical industry" to gain its support for wrongful death legislation, said Rep. John Cosgrove, D-Miami. He and a handful of other lawmakers later filed legislation to change the exemption, but those bills never reached a floor vote.

No bills to repeal the exemption were filed during the 1999 session. None are likely to be filed as long as House Speaker John Thrasher remains in his position, some say privately. He is the former general counsel for the Florida Medical Association, which fought for the exemption. He was not in office at the time the legislation was passed.

The real question that should be asked is why any business or profession should enjoy a form of "immunity" for its misconduct, especially when that misconduct causes a death.

The Supreme Court is not expected to make a ruling for a few months.