Florida gives the survivors of a deceased person certain rights. Specifically, if a wrongful act brought about the death, the survivors may sue the responsible parties for money damages. This type of lawsuit receives a lot of attention in the wake of sensational murder trials, as often times even when the citizen accused is acquitted by the jury the family of the deceased then sues the accused in an action for wrongful death. A civil suit, such as for wrongful death, has a lower standard of proof than a criminal trial, so on the exact same facts, a plaintiff is more likely to win the civil case for that reason alone.
A less sensational, but no less real situation, is when medical malpractice caused the wrongful death. The Florida laws allow the survivors (you can think of them as parents, children, or spouses) to recover for wrongful death caused by, among other things, negligence. Remember that an allegation of medical malpractice boils down to negligence. So far, so good.
So let’s take a look at the Florida Wrongful Death Act, which is Section 768. Everything looks ok until we get to subsection 21 – Damages. Here, we see something really crazy.
768.21(3) says that in a situation where the deceased was unmarried, the adult children, defined as 25 years old or older, may recover non-economic damages related to the avoidable loss of their parent. These damages are basically defined in a kind of common sense way: the loss of companionship and advice of a loved one, as well as mental pain and suffering caused by their death.
768.21(4) says that parents of a deceased adult may recover non-economic damages if there are no other survivors (children or spouse).
768.21(8) is the shocker, the screamer, the howler. This part says that the adult children from (3) and the parents of an adult from (4) cannot recover non-economic damages if the death was caused by medical malpractice!!!!!
Think about this for a minute. Medical malpractice is defined as “Negligence” in exactly the same way as other kinds of negligence. Yet the law has specifically created a loophole to prevent non-economic damages from only medical malpractice.
There is a very cynical take on all of this in the opinion of quite of a few people. Look at the demographics of Florida – a much higher than normal percentage of retired and elderly persons. Consider that your average retiree is in their 60’s, and almost certainly does not have children below age 25. And, many retirees are not currently married. Thus the law makes it “Less bad” for medical practitioners to negligently kill this not-insubstantial chunk of the population. There are also quite a few adults who are unmarried and do not have children, but do have living parents. The law makes it “Less bad” for medical practitioners to negligently kill them too!
In human terms, how is the mental anguish from a loved one’s death any less severe if the death was caused by medical negligence versus say a negligently driven car? The answer, in the eyes of those same cynical people, is that it is not – but that the medical and medical insurance industries in Florida are extremely powerful, with lots of lobbying dollars to spend, and a lot of political clout.
“Wait a minute,” you might say, “shouldn’t the courts do something about this?” Well, this exact problem was actually brought before the District Court of Appeal of Florida, in Mizrahi v. North Miami Med. Center. In it the plaintiffs, who had lost a parent due to alleged medical malpractice, sued for non-economic damages. When the trial court denied these damages, the plaintiffs alleged that the Wrongful Death Act violated their Constitutional rights to Equal Protection under the law.
The Appeals Court, chillingly, rejected this argument completely. It said that the right to non-economic damages was not a “Fundamental right” under either the Federal or Florida Constitution. Thus, the state was entitled to what is known as rational basis review. This is a fancy way of saying that the Court will extend the maximum possible amount of deference to what the state did and bend over backwards to ignore any possible problems, unless possibly the state threw rotten tomatoes at pedestrians off a highway overpass or something equally bad, in which case the Court will ask the state for a justification and pretty much always believe the answer they receive.
Certainly the justification here was incredibly chilling, and seemed to bear out the cynical opinion of the cynics. The court felt that reducing the costs of malpractice insurance, due to the high number of deaths from medical malpractice in the state, was a legitimate state goal that should receive the maximum possible deference. In other words, the court felt that the suffering of victims’ families was more or less unimportant when faced with rising health care costs. The court also set up a dangerous justification: the state had formed a task force which decided that the rising costs of malpractice insurance was a “Crisis” area. Thus the disparate treatment of medical malpractice to address the “Crisis” was enough justification. Other forms of negligent killing were not defined by the state as “Crisis” areas, and so could be left alone.
This raises the incredibly disturbing specter of the government defining certain situations as “Special.” The government then says to the courts “We have to do XYZ in Special situations.” The court says “Ok well, as long as you’re sure the situation is Special, that’s fine.” We’ve seen the consequences for medical malpractice, but this kind of tortured logic has worked its way into our most basic freedoms: when you define “Special” as relating to national security or the prevention of terrorism, all of a sudden XYZ can look a lot like what George Orwell envisioned in his novel 1984.
In 2000, the Florida Supreme Court upheld Mizrahi, in a decision widely applauded by tort reform advocates and the medical establishment across the country.