Wrongful Death FAQ

What is a wrongful death claim?

Wrongful death is a claim brought against a party whose negligence caused the death of another. The actions of the accused would be deemed outside of the scope of what a reasonable, careful person would do in the same situation.

These types of incidents can include, but are not limited to: airline, bus, or boating accidents, workplace accidents, medical malpractice or negligence, or exposure to hazardous substances. Because of the serious nature of wrongful death cases, they can be difficult to prove and can take quite a while to resolve.

The State of Florida requires such a suit to be filed within four years of the incident. Under a few specific circumstances, that timeframe can be extended. However, extremely narrow criteria must be met for this to apply to your case. In addition, there are two different forms of damages that can be awarded: compensatory and punitive. You can find out more about these damages on this page of our FAQ guide.

Wrongful death cases should never be faced alone. If your loved one passed away due to someone else’s negligence, your best option is to contact an experienced attorney who can fight your case for you.

What can I sue for in a wrongful death case?

There are two categories of damages in a wrongful death suit:

• Survivor: damages recovered by loved-ones (as recognized by the state)
• Estate: property, belongings, etc., left to beneficiaries of the decedent by way of a will

Survivor Damages

• Lost Support and Services: monetary and property contributions; also includes familial tasks performed
• Loss of Decedent’s Companionship and Protection: the effects the loss will have on the survivors
• Mental Pain and Suffering: only recoverable by five types of survivors — the surviving spouse, minor children, adult children when there is no surviving spouse, each parent of a deceased minor child and the parents of an adult child when there are no other survivors
• Lost Parental Companionship, Instruction and Guidance: only for children under the age of 25; for those 25 and older, this is only recoverable if there is no surviving spouse
• Medical or funeral expenses when paid by a survivor

Estate Damages

• Loss of Net Accumulations: probable future income from all sources; work, investments, etc.
• Decedent’s Lost Earnings: earnings that would have been made between the date of injury and the date of death
• Decedent’s Medical and Funeral Expenses: recoverable by survivors when the survivors paid these expenses out-of-pocket

Are wrongful death settlements taxable?

To answer that question, we have to look at the two factors that determine the settlement amount in these cases: compensatory damages and punitive damages.

• Compensatory damages: this is a monetary award given to the victim’s family to compensate them for medical expenses, funeral and burial costs, all costs incurred as a result of the wrongful death. This can also include lost income and estimates of future income had the loved-one not fallen victim to the defendant’s neglect. Lost income can be calculated based upon the victim’s age at the time of death, his/her average life expectancy if not for their untimely death and the annual earning potential of the victim multiplied by anticipated years remaining in the workforce. Other factors include the non-economic household contributions made by the family member and the loss of companionship their death has on the family.
• Punitive damages: this is monetary compensation awarded when it is proven that, if not for the offending party’s intentional, negligent or reckless actions, the victim would not have died. This award is intended to be disciplinary in nature and is meant to dissuade future similar acts. Punitive damages are imposed in addition to compensatory damages.

The Internal Revenue Service (IRS) has ruled that, in general, compensatory damages are not generally taxable. The code does point out that in some cases, if monies for medical expenses were itemized and claimed on prior years taxes, those amounts would become taxable upon receipt of the settlement. Punitive damages may be taxable to some extent as well. It is important to discuss this with your attorney to determine exactly how the law applies to your specific situation due to the intricacies associated with wrongful death settlements and tax liability.

The settlement may also affect estate taxes, so again, it is imperative to speak with an attorney and a tax professional to insure you are insulated against undue liability.

Who can sue for wrongful death?

The state of Florida determines that wrongful death claims can be brought only by the personal representative of the deceased person’s estate.

The deceased’s will or estate plan may pre-name a personal representative. If no will or estate plan exists, the personal representative will be appointed by the court. The personal representative may have no actual claim to the proceeds of settlement. For instance, if an attorney is named the personal representative, he/she is in place to oversee the affairs. Only specific surviving family members may recover damages in a Florida wrongful death case:

• Spouse
• Children
• Parents
• Blood relatives or adoptive sibling who is in any way dependent on the decedent for support

In the case of a child born to unmarried parents, the child can recover damages in the wrongful death case of his mother. If the child’s father dies, however, damages can only be sought if the father had formally recognized the child as his own and was obligated to contribute to the support of the child.

How do I file a wrongful death suit?

These cases are extremely complex and begin with the designation of a personal representative for the estate. This person must identify all surviving heirs as well as all costs associated with the decedent’s care leading up to his/her demise.

Only certain parties are eligible to bring the claim:

• Spouse
• Children
• Parents
• Blood relatives or adoptive sibling who is in any way dependent on the decedent for support

In the case of children born out of wedlock, children of the deceased mother are automatically considered survivors. If the father is the decedent, the children are considered survivors only if the father acknowledged them as his children and was responsible for their support.

Wrongful death suits must be filed within the statute of limitations. In Florida, that time frame is four years from the death of the victim.  Filing outside of the statute could mean loss of the ability to file at all as the court can refuse to accept the suit.

To qualify to file, a burden of proof must be met in that the claimant must prove that the defendant did not use due care to protect the victim from harm and eventual death, and that lack of care directly resulted in the death of the victim. Additionally, it must be proven that the death caused the damages the claimant is seeking to recover.

To file the case, the claimant must seek legal representation.

According to Florida Statute 766, the decedent’s personal representative may recover for the decedent’s estate the following:

• Loss of earnings of the deceased from the date of injury to the date of death
• Loss of the prospective net accumulations of an estate, which might reasonably have been expected if not for the death, may also be recovered if:
  • decedent’s survivors include a surviving spouse or lineal descendants; or
  • decedent is not a minor child as defined in s. 768.18(2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent.
• Medical or funeral expenses due to the injury and subsequent death that have become a charge against the estate or that were paid by or on behalf of decedent
• Evidence of remarriage of the decedent’s spouse is admissible
• All awards for the decedent’s estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims
• Specific damages are not recoverable by adult children or parents of an adult child as it relates to medical negligence as outlined in Florida statutes

In short, each survivor, as identified by the personal representative, may recover the value of lost support and services from the date of the decedent’s injury to the date of death, with interest, including any future loss of service and support.

During the valuation for loss of services and support, the following factors are considered:

• survivor’s relationship to the decedent
• amount of the decedent’s probable net income available for distribution to the particular survivor
• replacement value of the decedent’s services to the survivor may be considered

In computing the duration of future losses, the joint life expectancies of the survivor and the decedent may be considered.

• The surviving spouse may also recover for loss of companionship and protection and for mental anguish suffered from the date of injury
• All children, especially minor children in the case of no surviving spouse, are also eligible to recover for lost parental companionship, instruction and guidance and for mental anguish
• In the event both parents die within 30 days of one another as a result of the same incident, each spouse is considered to have been predeceased by the other
• Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury
• Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors
• Medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them

What factors must be present to prove wrongful death?

In order to present a successful wrongful death case to an insurance company or court of law, the claim can only be supported if specific elements are present:

• death was caused by the defendant, whether or in whole or in part.
• death occurred as a direct result of the defendant’s negligence.
• death has affected you and/or other surviving family members (children, parents, spouses) who qualify to receive compensation through a wrongful death settlement/verdict.
• death resulted in monetary damages.

Once those parameters are identified, the next step is to determine who has legal standing to bring the action. This would include family members who suffered damages because they received all or some of their support from the victim.

A personal representative must then be appointed to:

• establish an estate for the deceased
• identify all survivors
• identify any other economic obligations the estate may have as a result of the death of the decedent

Only upon establishing these elements can an action (suit) be initiated. Of utmost importance is to establish that the act resulted in the death.

What circumstances can substantiate a wrongful death claim?

There are three major categories in which wrongful death claims are typically grouped: medical malpractice, work-related death and criminal acts.

• Medical malpractice
  • failure of medical professionals to diagnose a serious medical condition thereby causing the death of the victim negligent procedures during surgery
  • prescribing incorrect medications or improper dosages

• Work-related deaths
  • occupational exposure to hazardous situations or materials (absorption, inhalation, and ingestion)
  • improper or inappropriate equipment
  • machinery or property in disrepair resulting in injury and subsequent death

• Criminal acts
  • battery and murder
  • negligent supervision during scholastic and daycare activities

It is important to speak with an attorney early in the case to determine how to proceed.

How much is my wrongful death case worth?

This is a tricky question.

First, we must establish that there is a valid wrongful death claim, meaning the following burdens have been met:

• death was caused by the defendant, whether or in whole or in part.
• death occurred as a direct result of the defendant’s negligence.
• death has affected you and/or other surviving family members (children, parents, spouses) who qualify to receive compensation through a wrongful death settlement/verdict
• death resulted in monetary damages

Next, we must determine that there are survivors who are eligible to file the claim:

• Spouse
• Children
• Parents
• Blood relatives or adoptive sibling who is in any way dependent on the decedent for support

Finally, and probably most crucially, is determining whether or not the defendant has the means to pay a settlement or judgement. Let’s say the defendant is a business or large corporation with insurance and assets. It is likely that a settlement can be reached or a judgement awarded and paid to survivors on the decedent’s behalf. If, however, the defendant is a lone individual with no insurance or assets, the pursuit of a claim may not be advisable as the chances for obtaining compensation are nearly impossible based upon the defendant’s resources.  Even when the individual has insurance, there are limits to the policy.

The intricacies of these cases require legal counsel adept and experienced at navigating the laws surrounding wrongful death and the avenues available for recovery with the parameters of the law.

How long can a wrongful death lawsuit take?

These cases can take years from inception to completion. Furthermore, it will be extremely emotional. The following is a summary of the steps involved in a wrongful death case:

• 1. A personal representative is named
• 2. All of the information has been gathered concerning the survivors and the cause of death
• 3. A claim is made for damages
• 4. A monetary settlement demand is made against the defendant
  • a. These types of cases often do not settle due to the complexities surrounding them, and usually a lawsuit must be filed
• 5. In the event the claim does not settle, a formal legal claim, or complaint, is drafted and served on the defendant and the county clerk triggering the start of a lawsuit
• 6. A process called discovery takes place
  • a. each side requests certain statements, documents and admissions from the opposing side
• 7. Witnesses are identified and asked questions under oath to:
  • a. establish the facts of the case, including the cause of death
  • b. circumstances surrounding that cause
  • c. determine the extent of damages which may be due to the survivors and the estate
• 8. Before a trial date is set, the parties will hold a mediation conference to see if the matter can be resolved without the necessity of a trial
• 9. Failure to come to an agreement during the mediation will prompt a trial date and reliance on a jury to determine if the defendant is responsible for the death of the decedent
  • a. The jury will also determine what the appropriate amount of damages should be
• 10. If a verdict is rendered in favor of the estate of the decedent, damages will be awarded to the decedent’s estate and survivors
• 11. If the verdict is rendered in the favor of the defendant, no award will be made against the defendant and the case will be dismissed
• 12. Either side has the ability to appeal a decision if the disagree with the outcome of the case

The process is long and takes resolve and the expertise of legal counsel to ensure the case moves forward and all information is presented.

Can I sue a hospital for wrongful death?

Suits can be filed against health care providers of all types for medical negligence leading to wrongful death. Included are:

• Chiropractors
• Hospitals
• Licensed vocational nurses
• Paramedics
• Pharmacists
• Registered nurses
• Surgeons
• Walk-in medical centers and clinics

Some examples of what may constitute medical malpractice include:

• an unexpected or very different result than expected from a surgery or treatment
• severe injury or death that occurs as a result of “routine” treatments or surgeries
• when no reasonable explanation for the death or worsened condition of the patient can be provided
• death from a procedure

In Florida, a medical malpractice action must be brought within two years from the date of the incident or from the date when the incident was or should have been discovered. An exception applies in cases where the facility knowingly withheld bad or inappropriate action from the claimant.

There is a requirement to serve a notice of intent to sue prior to pursuing the case in court. This starts with a medical affidavit called a Certificate of Merit. This is an opinion from another physician who has reviewed the case and makes a statement that the defendant’s negligent actions lead to the demise of the decedent. The statement should include:

• identification of all of the medical records reviewed
• explanation of the applicable medical standard of care that the defendant should have followed (i.e., what a reasonable physician in the defendant’s position should have done)
• opinion that the defendant failed to follow the applicable standard of care (i.e., that the defendant was negligent)
• opinion that the defendant’s negligence was a cause of the plaintiff’s injury (this is not always required); and
• physician’s reasoning.

This notice sets in motion a 90-day settlement process. During that period, verification of adherence to the statute of limitations is reviewed. Within this time frame, the hospital must make a decision as to whether or not they would like to settle the case. If they choose not to settle, you, the claimant, have 60 days or the remainder of the statute of limitations to file the lawsuit. In some cases, an extension is available to pursue additional investigation.  Due to the complexities of these laws, experienced legal representation is required to ensure all burdens are met.