This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h6011b.JDC
DATE: 2/21/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 6011 Recovery of Damages in Claims for Medical Negligence
SPONSOR(S): Roach
TIED BILLS: IDEN./SIM. BILLS: SB 262
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice & Property Rights Subcommittee 13 Y, 5 N Brascomb Jones
2) Judiciary Committee Brascomb Kramer
SUMMARY ANALYSIS
A "wrongful death" action arises when a person dies from injuries sustained as a result of a wrongful act or
omission by the defendant. In a wrongful death action, Florida's Wrongful Death Act limits the types of
damages recoverable by certain parties as follows:
The deceased’s estate may recover for:
o Lost wages, benefits, and other earnings;
o Medical and funeral expenses that were paid by the estate; and
o The value the estate could reasonably have been expected to acquire if the deceased had lived.
Specified family members may recover for:
o The value of support and services the deceased provided;
o Loss of companionship and guidance;
o Mental and emotional pain and suffering, in specified cases; and
o Compensation for medical and funeral expenses the family member has paid for the deceased.
In an ordinary wrongful death action (such as a suit based on a death caused by an automobile accident),
parents can recover for their mental pain and suffering for the loss of an adult child when there is no surviving
spouse or child. However, when the wrongful death action is based on a medical malpractice claim, parents
cannot recover for their mental pain and suffering for the loss of an adult child.
HB 6011 amends s. 768.21(8), F.S., to allow parents of an adult child who has no surviving spouse or children
to recover for mental pain and suffering in a medical malpractice wrongful death action.
The bill does not appear to have a fiscal impact on state or local government.
The bill provides an effective date of July 1, 2022.
STORAGE NAME: h6011b.JDC PAGE: 2
DATE: 2/21/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Florida’s Wrongful Death Act
A "wrongful death" action arises when a person dies from injuries sustained as a result of an act or
omission by the defendant.
1
At common law, there was no cause of action for wrongful death.
2
Courts
reasoned that a deceased person could not pursue legal action, so the claim died with the decedent.
3
In turn, states began to enact wrongful death statutes to create a civil right to recovery when the would-
be plaintiff dies, shifting the resulting losses from the decedent’s survivors to the wrongdoer.
4
Under Florida's Wrongful Death Act (Act),
5
when a person’s death is caused by a wrongful act,
negligence, or breach of contract of another, and the event would have entitled the deceased to
recover damages if he or she had survived, the defendant is liable for damages notwithstanding the
injured person’s death.
6
The Act specifies the parties who may recover for a wrongful death, who are
generally:
The deceased’s estate;
The surviving spouse of the deceased;
Children under 25 of the deceased;
Children 25 or older of the deceased if there is no surviving spouse;
Parents of a deceased child under 25; and
Parents of a deceased child 25 and older who had no surviving spouse or children.
7
However, these parties may recover only damages that are specified under the Act. The deceased’s
estate may recover only for:
Lost wages, benefits, and other earnings including the potential for future earnings;
Medical and funeral expenses that were paid by the estate; and
The value the estate could reasonably have acquired had the deceased lived.
8
Family members may claim recovery only for:
The value of support and services the deceased provided;
Loss of companionship and guidance in certain circumstances;
Mental and emotional pain and suffering if the family member seeking damages is:
o A surviving spouse;
o A child under 25 of the deceased;
o A child 25 or older of the deceased if there is no surviving spouse;
o A parent of a deceased child under 25;
o A parent of a deceased child 25 or older who had no surviving spouse or children; and
Compensation for medical and funeral expenses the family member has paid for the deceased.
9
1
See Pezzi v. Brown, 697 So. 2d 883, 884 n.1 (Fla. 4th DCA 1997).
2
Dennis M. Doiron, A Better Interpretation of the Wrongful Death Act, 43 Me. L. Rev. 449 (1991),
https://core.ac.uk/download/pdf/304932065.pdf (last visited Feb. 17, 2022).
3
Id.
4
Id.; s. 768.17, F.S.
5
Ss. 768.16 – 26, F.S.
6
S. 768.19, F.S.
7
S. 768.21, F.S.
8
Id.
9
Id. STORAGE NAME: h6011b.JDC PAGE: 3
DATE: 2/21/2022
Medical Negligence Exception to Wrongful Death Act
The Act evolved during the medical malpractice tort reform of the late 1980s and early 1990s, prior to
which time there were limitations on who could bring any kind of wrongful death lawsuit for damages.
10
In 1990, the Legislature began to allow adult children and parents of an adult child to seek
noneconomic damages
11
for wrongful death in non-medical negligence cases—a right they had not
previously enjoyed.
12
However, while that meant they could seek noneconomic damages in an
ordinary wrongful death suit, such as a suit based on a death caused by an automobile accident, the
statute expressly excluded noneconomic damages in medical malpractice lawsuits.
The Legislature reasoned that by protecting medical providers from increased malpractice suit
exposure and escalating liability insurance rates, it would encourage more physicians to practice in the
state and lower the cost of health care by reducing malpractice premiums.
13
Under current Florida law, in the case of the death of a parent due to medical negligence, a child who is
25 or older may not seek noneconomic damages; and, in the case of the death of a child who is 25 or
older due to medical negligence, a surviving parent may not seek noneconomic damages.
14
Other States
Florida is the only state that differentiates between a medical negligence wrongful death action and
other types of wrongful death actions for the purpose of excluding parents of adult children from
seeking pain and suffering damages for wrongful death in medical negligence cases.
15
Some states
prohibit pain and suffering damages in wrongful death lawsuits entirely.
16
However, the states that allow
parents of adult children to recover pain and suffering damages for wrongful death actions allow such
pain and suffering damages regardless of whether the wrongful death action involves medical
negligence.
17
18
Effect of Proposed Changes
HB 6011 amends s. 768.21(8), F.S., to remove a provision prohibiting parents of a child who is 25
years old or older and has no surviving spouse or children from recovering for mental pain and
suffering in a medical malpractice wrongful death claim. The bill retains a provision excluding adult
children from seeking noneconomic damages for wrongful death in medical negligence cases.
The bill provides an effective date of July 1, 2022.
10
Carrie Seidman, A loophole in Florida’s Wrongful Death Act, Herald Tribune (Oct. 13, 2019),
https://www.heraldtribune.com/news/20191013/loophole-in-floridas-wrongful-death-act (last visited Feb. 17, 2022).
11
Noneconomic damages are compensation for subjective, non-monetary losses such as pain, suffering, inconvenience, emotional
distress, loss of society and companionship, loss of consortium, and loss of enjoyment of life. Economic damages are compensation for
objectively verifiable monetary losses such as past and future medical expenses, loss of past and future earnings, loss of use of
property, costs of repair or replacement, the economic value of domestic services, and loss of employment or business opportunities.
Center for Justice and Democracy, Fact Sheet: Understanding Non-Economic Damages, New York Law School,
https://centerjd.org/content/fact-sheet-understanding-non-economic-damages (last visited Feb. 17, 2022).
12
Id.
13
Id.; Ch. 90-14, Laws of Fla.
14
S. 768.21, F.S.
15
Carrie Seidman, supra, at 10.
16
See, e.g., Evans v. Twin Falls County, 118 Idaho 210, 215, 796 P.2d 87, 92 (1990) ("An action for pain and suffering does not survive
the death of the injured”); N.J. Stat. Ann. s. 2A:31-1 (under New Jersey law, noneconomic damages are not recoverable under the
state's wrongful death statute; however, the state's survival act allows damages for the pain and suffering of the decedent prior to death
to be recovered by spouse and surviving descendant).
17
Id.
18
See, e.g., Md. Code Ann., Cts. & Jud. Proc. s. 3-904 (Maryland law authorizes the parents of an adult child in a wrongful death action
to recover for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, attention, advice,
counsel, training, education, or guidance).
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DATE: 2/21/2022
B. SECTION DIRECTORY:
Section 1: Amends s. 768.21, F.S., relating to damages.
Section 2: Provides an effective date of July 1, 2022.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
See Fiscal Comments.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
See Fiscal Comments.
D. FISCAL COMMENTS:
The bill makes defendant health care providers liable in a medical malpractice wrongful death action for
the pain and suffering damages of parents of a child 25 or older who has no surviving spouse or
children, which may have an impact on insurance rates or contracts.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
There do not appear to be any constitutional issues with the bill. However, the general subject of
recovery in a medical malpractice wrongful death claim has been litigated. In Mizrahi v. North Miami
Medical Center, the appellant argued that the medical negligence exception to the Wrongful Death Act
treated adult children of a person who dies as a result of medical malpractice differently than adult
children whose parent dies as a result of a cause other than medical malpractice, violating the Equal
Protection Clause under the Florida Constitution, since there was no rational basis to make that
distinction.
19
The Florida Supreme Court upheld this exclusion as constitutional, noting that "the
statute's disparate treatment of medical malpractice wrongful deaths does bear a rational relationship
to the legitimate state interest of ensuring the accessibility of medical care to Florida residents by
curtailing the skyrocketing medical malpractice insurance premiums in Florida."
20
19
Mizrahi v. N. Miami Med. Ctr., 761 So. 2d 1040 (Fla. 2000).
20
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DATE: 2/21/2022
B. RULE-MAKING AUTHORITY:
Not applicable.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES