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Similarities and Differences Between a Medical Malpractice and a Wrongful Death Lawsuit

medical law with gavel
If you’re not familiar with the specifics of Florida wrongful death suits and medical malpractice claims, you might reasonably assume that a medical malpractice case and a wrongful death case based on medical malpractice would be quite similar. In fact, there are some significant differences between the two types of cases–even if the negligence itself is identical.

Three key differences are how long you have to file, who is entitled to damages, and what damages they are entitled to recover.

How Long Do You Have to File a Wrongful Death or Medical Malpractice Claim?

At first glance, it seems that the amount of time you have to file a medical malpractice claim or a wrongful death claim is the same. Both statutes of limitations allow two years. But, the way the time period is calculated can be very different.

The two-year statute of limitations for wrongful death claims begins to run when the death occurs. But, the medical malpractice statute of limitations has a built-in exception that can make calculating the cut-off a bit more complicated. Though the statute of limitations is two years, that time period may not start to run until the victim discovers that the medical malpractice caused their damages. But, that extension isn’t without limit. There’s a hard cut-off at four years, unless a potential defendant intentionally concealed the basis for the claim or delayed discovery through intentional misinformation. In that situation, the limitations period may be as long as seven years.

There’s good news for surviving family members of those who died as a result of medical malpractice, though. More than two decades ago, Florida courts decided that when a wrongful death case is based on medical malpractice, these same possible extensions should apply. The calculation can be complicated, so it’s best to consult a wrongful death attorney who is also familiar with medical malpractice claims to determine whether there’s still time to file.

Who Can File a Claim for Medical Malpractice or Wrongful Death?

If the victim of medical malpractice survives, it’s the injured patient who has a cause of action against the negligent doctor, hospital, or other healthcare provider. In a wrongful death case, the estate of the deceased victim of malpractice files the lawsuit for the benefit of surviving family members.

There may be multiple family members entitled to collect damages. But, Florida law strictly limits who can benefit from a wrongful death claim. And, not every eligible relative is entitled to the same type of compensation.

Those who may be entitled to compensation in a wrongful death suit include:

  • The surviving spouse
  • Children of the deceased
  • Parents of the deceased
  • Blood relatives or adopted siblings who depended on the deceased for services or support

Types of Compensation Available

In a medical malpractice case, the victim of the malpractice may be entitled to a wide range of damages, including:

  • Compensation for medical expenses caused by the malpractice
  • Compensation for lost income due to the malpractice
  • Compensation for anticipated future or continuing medical costs
  • Compensation for anticipated future decrease in income, including time away from work due to the malpractice or diminished future earning capacity
  • Compensation for additional costs necessitated by the malpractice, such as special equipment or assistance in daily life
  • Compensation for pain and suffering
  • Compensation for other intangible losses, such as loss of quality of life

The compensation available in a wrongful death case, including a case involving a death caused by medical malpractice, is much more limited.

Any or all of the relatives listed above may be eligible for compensation for the loss of services and support from the deceased. This includes both services and support lost between the date of the malpractice and the date of death, and future losses reduced to present value. This is based on the actual support that person would likely have received from the deceased had they survived, including the replacement value of lost services. So, for example, a sibling who was living with the deceased short-term after a divorce might be entitled to some compensation. But, they would likely significantly less than a disabled sibling who had lived with the deceased for years and would likely have continued to depend on the deceased for life.

Certain close relatives may be entitled to additional compensation.

  • The surviving spouse and any minor children (defined as under the age of 25 for purposes of the wrongful death statute) may be entitled to compensation for mental pain and suffering
  • The surviving spouse may be entitled to compensation for loss of companionship and protection
  • Minor children may be entitled to compensation for loss of parental companionship, instruction and guidance
  • Parents of a deceased minor child may be entitled to compensation for mental pain and suffering, while parents of a deceased adult child are entitled to this type of compensation only if there is no surviving spouse or child
  • Children of the deceased who are 25 or older may be entitled to damages for loss of companionship, instruction and guidance and for mental pain and suffering only if there is no surviving spouse

Unfortunately, this limited list sometimes means that a medical provider commits malpractice, the patient dies as a result, and there is no one on whose behalf the estate can initiate a wrongful death claim.

Talk to a Medical Malpractice Attorney / Wrongful Death Lawyer

A wrongful death claim involving medical malpractice is complicated. Although the case is filed as a wrongful death claim, the estate will still have to prove that the doctor or other medical provider did not live up to the accepted standard of care, and that the provider’s failure to live up to that standard caused the death.

The attorney may also need to calculate the filing deadline based on the fluctuating timeline that applies to medical malpractice claims. The best way to ensure that your attorney is fully prepared to build the strongest possible case on your behalf is to work with an experienced injury attorney who specializes in both medical malpractice and wrongful death claims.

To learn more about how the attorneys at Harrell & Harrell can put their skills to work for you, call 904-251-1111 or fill out the contact form on this site.