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Death of Older Special-Needs Son Tests Florida’s Wrongful Death Statute


A recent death highlighted the need to revisit Florida’s decades-old rule concerning wrongful death lawsuits and medical malpractice. Under the law, a parent may not file a wrongful death action on behalf of a child over the age of 25. This statute (768.21) only applies in cases of medical malpractice. In other words, if your adult child is killed in a car accident, boating accident, from a dangerous product, or by any other means, a parent can file a wrongful death action against a negligent party. However, if the defendant is a doctor, they are given immunity from wrongful death actions filed by parents. Because of this, the statute has become known as “Florida’s Free Kill Law”.

Who Can File a Wrongful Death Action in Florida?

Living parents of an adult child are authorized under the law to file wrongful death actions so long as a doctor is not named as the defendant. A wrongful death action against a doctor can be filed by a living spouse or children under the age of 25 under the legislation.

For the parents of Tommy Myers, their 39-year-old son who died when dentist Veronica Thompson administered too much anesthetic, there is no way to hold the individual responsible for their son’s death accountable.

However, the doctor is still in hot water. The Board of Dentistry voted to revoke her license. They cited her for administering too much anesthetic too quickly and for following to follow emergency procedures when her patient stopped breathing. However, it isn’t up to the Board of Dentistry whether or not her license gets revoked. It’s up to the Florida Department of Health to file a formal complaint and an administrative law judge to revoke her license to practice medicine in the state of Florida.

Typically, Florida has been reluctant to punish doctors for medical negligence. Doctors often face minimal fines and the requirement to undergo additional training to prevent such a mishap from occurring again.

Why Does This Law Remain on the Books

Laws restricting medical malpractice lawsuits have been on the books for decades. Many of them have been overturned by the state supreme court for being unconstitutional. The Florida Supreme Court decided that these laws unfairly restrict patients from pursuing damages against doctors commensurate with the extent of their injuries. Nonetheless, there are some remnants of the original legislation that continue to hinder grieving family members from recovering damages related to their loss.

The Myers family is only one example of a family barred from suing a negligent doctor who harmed their loved one.

Talk to a Vero Beach Personal Injury Attorney Today

If you’ve been injured by someone else’s negligence, the Vero Beach personal injury attorneys at Vocelle & Berg, LLP can help you recover damages related to your injuries. Talk to us today for a free consultation.