Category Archives: Wrongful Death

Wrongful Death Series Part 10: How Is A Private Forensic Autopsy Different From A Medical Examiner Investigation?

In regards to a potential Florida Wrongful Death case, the case may require a private autopsy to be performed to ensure that critical evidence is collected and analyzed.

A private autopsy is one performed for a fee and usually paid for by a law firm investigating a potential wrongful death case, usually as part of a potential medical malpractice case. The private autopsy is usually performed by a Board Certified Forensic Pathologist who will have no connection to any potential defendant in the case and is usually geographically distant from the county where the case arises. This ensures objectivity on behalf of the examiner and increases the credibility of the eventual court case.

The private autopsy typically follows the investigation conducted by the medical examiner, which did not involve the performance of an autopsy. Meaning, the medical examiner was able to certify the cause and manner of death based upon investigative input from factors other than the autopsy.

A private autopsy may be pursued by the deceased’s personal representative if there is additional question or concern about the cause of death as it relates to the mechanism of injury, illness, or medical intervention. A private autopsy is generally performed by a forensic pathologist specifically trained in this field, akin to a medical examiner.


A medical examiner can perform autopsies and is appointed, not elected. Forensic pathology specifically focuses on determining the cause of death by examining a body.


The Private Autopsy Will Include Exhaustive Documentation Of The Following:

– Chain of custody of the human remains

– Photographic documentation of all aspects of the gross and microscopic evaluation of the human remains

–  Explicit labeling and preparation of tissue or fluid samples intended for further laboratory analysis

The Forensic Pathologist will prepare a full report of the findings that summarizes all aspects of the autopsy process (gross description, microscopic evaluation, toxicologic assays) as well as the cause and manner of death supported by such findings.

It is almost required for any successful medical malpractice case that the plaintiff in a Florida Wrongful Death case has a professional autopsy. This will ensure that the evidence in the case is analyzed and preserved so that the defendants will have a harder time blaming the death on something other than their own carelessness.


The function of a forensic autopsy is to provide information through a postmortem examination of the body and analysis of the fluids to determine the cause of death, manner of death, and mechanism of injury.


It is imperative that an experienced Florida Wrongful Death lawyer be hired to direct the death investigation and ensure that the right expert is hired to perform the post mortem exam. The findings of the private autopsy can make or break a potential wrongful death case, and this examination should be treated with the utmost respect.

If you or a loved one is faced with the unfortunate position of having to consider a private autopsy as part of a Florida Wrongful Death case, you should first discuss the matter with one of our lawyers at zarzaurlaw.com. Call us as soon as possible with any such questions.  855HireJoe

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Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

 

Sources:
https://learn.org/articles/What_Certifications_are_Needed_to_Become_a_Forensic_Pathologist.html

 

Wrongful Death Series Part 9: A Hospital Autopsy – How Is This Different From A Private Autopsy?

We have seen it many times. A loved one dies while in the care of a hospital, and the hospital is having issues answering your family’s questions. Someone in your family suggests to the doctor that there should be an autopsy.

For reasons within their authority, the medical examiner does not feel their office needs to conduct an autopsy. The family’s questions remain, and the hospital (either risk management or a physician) suggests that the hospital conduct an autopsy at no expense to the family.

This is a HUGE MISTAKE for several reasons that will be discussed below and will usually lead the family to a false sense of security in understanding the cause of death.

The Hospital Autopsy

A hospital autopsy is also termed a post-mortem examination of the body. These examinations generally do not endeavor to determine the cause or manner of death. Rather, these post-mortem examinations identify diseases, diagnoses, or medical problems as potentially related to the death of a patient. Some hospital autopsy examinations will be limited in scope. The exam will only be performed on a specific organ system or disease process depending on the various aspects of the medical care, as reported by the attending clinician.

The Limitations Of The Hospital Autopsy Report

A hospital autopsy is typically performed by a pathologist without specific forensic training or certification. The pathologist will compile a list of diagnoses or medical conditions to include in the final report following a hospital autopsy.

The Report:
The report from these hospital autopsies typically looks more like a detailed description of the anatomy and the various conditions of organs and tissues. What will be missing is any analysis of the condition of these body parts in relation to the cause of death. Some hospitals use this hospital autopsy to show the family the report and then allow the same physicians that treated your loved one to conclude that the cause of death was something other than any negligence. The hospital autopsy reports are so open-ended that they allow for any conclusion to be drawn from their findings.

Why You Should Opt For A Private Autopsy

Keep in mind that the hospital is taking advantage of your family’s vulnerability at this point, and you and your family should always opt for a private autopsy, demanding instead that the body of your loved one not be touched by anyone at that hospital. Remember, you are thinking that this facility may have killed your family member.


Why would you think they (the hospital) are going to do a better job analyzing them after their death?


 

with wrongful death case experience like our firm. We can be reached on the web at zarzaurlaw.com or by phone at 855HireJoe.

WATCH OUR YOUTUBE VIDEO HERE >

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

Wrongful Death Series Part 8: When Is An Autopsy Required In The State Of Florida?

In regards to Florida Wrongful Death cases, it is important for a personal injury lawyer to know the law in regards to when an autopsy is required and when it is in the State of Florida.

In Florida, the Medical Examiner for a particular jurisdiction is held to conduct an investigation yielding both the cause and manner of death.

The Cause Of Death Is Typically An Injury, Illness, Or Pathologic Process.

The manner of death will be classified as one of the following: natural, accidental, suicide, homicide, or undetermined.

The investigation conducted by the Medical Examiner may include: General inquiry (identification of the deceased, terminal circumstances, medical history, social history)

Medical chart review

Evaluation of the death scene

Autopsy of the body

Microscopic tissue examination

Laboratory evaluation (i.e. toxicology).

It is important to understand that the medical examiner does not always deem an autopsy necessary depending on additional factors or variables that constitute the whole of the investigation.

In Florida, The Medical Examiner Is Held To Investigation By Florida Statutes In The Following:

Florida Statutes 406.11 Examinations, investigations, and autopsies.

(a)When any person dies in this state:

1. Of criminal violence.

2.By accident.

3. By suicide.

4. Suddenly, when in apparent good health.

5. Unattended by a practicing physician or other recognized practitioner.

6. In any prison or penal institution.

7.In police custody.

8.In any suspicious or unusual circumstance.

9. By criminal abortion.

10.By poison.

11. By disease constituting a threat to public health.

12.By disease, injury, or toxic agent resulting from employment.

(b) when a dead body is brought into this state without proper medical certification.

(c) when a body is to be cremated, dissected, or buried at sea.

Further, The Medical Examiner Is Held To An Autopsy As Part Of The Investigative Process Per Florida Administrative Code:

Florida Administrative Code 11G-2.003 Investigation (Medical Examiners Commission).

(5) Absent good cause, an autopsy shall be performed when:

(a) A reasonable suspicion exists that death might be by criminal violence or by any violence sustained in prison, a penal institution, or police custody.

(b) A reasonable suspicion exists that the death was by accident, suicide, or poison, unless:

1. The death is by poison and the deceased has survived in a hospital for a period sufficient to metabolize the poison, or

2. The death is by accident or suicide, and the cause of death can be determined from a review of the circumstances, history, and available medical records.

(c) The death of a child is apparently natural and occurs suddenly while in apparent good health.

(d) the circumstances of death are unusual or suspicious by reason of the body’s being unidentified after investigation, charred, or completely or partially skeletonized.

If you or a loved one finds yourself seeking answers following the death of someone close and you are faced with the proposition of having to decide whether the medical examiner will be conducting an autopsy or whether you should seek out a private autopsy, you should call us at 855HIREjoe or contact us via our website at zarzaurlaw.com.

WATCH OUR YOUTUBE VIDEO HERE >

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

Sources:

http://flrules.elaws.us/fac/11g-2.003

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0400-0499/0406/Sections/0406.11.html

 

Wrongful Death Series Part 7: What Should You Do If Your Loved One Dies Unexpectedly In The Hospital Or While Under The Care Of A Doctor?

Loved One Dies UnexpectedlyMany Florida families are faced with the real-life occurrence of a loved one dying unexpectedly in a hospital. They go in for what sounds like a routine type of procedure and end up having significant complications that cause their death. The family is rarely provided the full story and they are usually left to wonder what could have gone wrong. The hospital risk management may have even visited with your family to discuss the issue and perhaps offer some monetary settlement in an effort to get you to not visit with a lawyer.

They may have even offered to conduct an autopsy in their hospital to get you the “answers” you deserve. Again, all of this is in an effort to de-escalate the situation in hopes that they can keep you out of an office like ours.

So, what should you and your family do?

Here is Attorney Joe Zarzaur’s Advice.

Document

First, everyone needs to write out or dictate on their phone exactly what they recall happening in the hospital. This will be important later, so make sure everyone does it asap.

Consider a Private Autopsy

Second, your family should seriously consider a private autopsy before the funeral home does anything to your relative. These usually run between $7,000 and $12,000 plus transportation to and from the medical examiner’s office, unless the forensic pathologist comes to the funeral home.

Make sure to only hire a board-certified forensic pathologist. Keep in mind that a board-certified pathologist is not the same thing as a forensic pathologist.


Do not settle for a “hospital” based autopsy that is performed by the same facility and same employees that you are suggesting could have prevented your relative’s death.


Consult With An Attorney

Third, your family should consult with a law firm that has experience with medical malpractice wrongful death cases and whose firm is set up to handle these serious matters.

For a free consultation and advice on what your family should do in this tragic situation, please feel free to call us at 855HireJoe or email us at info@zarzaurlaw.com.

WATCH OUR YOUTUBE VIDEO HERE >

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

Wrongful Death Series Part 6: Why Does Age Matter In Florida Wrongful Death Cases?

Why Does Age Matter?The simple answer as to why age matters in Florida Wrongful Death cases is that Florida’s Wrongful Death Act makes age matter.

First, age matters in relation to whether a person has a claim and what type of damage the person may claim. As we have discussed in other blogs, Florida’s Wrongful Death Act is a creature of statute and not common law. This means that the rights provided to bring a Florida Wrongful Death case come exclusively from the words in the statute, and the law should not be read any less or any more. The judicial system is there to interpret the laws, but if they are clear, then the judges are simply there to give effect to that language in the form of their rulings.

Minor Child Defined In Florida’s Wrongful Death Act

Florida’s Wrongful Death Act makes it clear that minor children are defined as children under the age of 25. The wrongful death act goes on to prescribe that only minor children can qualify as survivors in regards to certain types of wrongful death claims. For this reason, a seasoned and experienced lawyer who has handled many Florida Wrongful Death cases is necessary to ensure the advice you and your family are receiving is expert advice.

Even though some laws define that age of majority as 18 years old in Florida, the only statute that matters for purposes of Florida’s Wrongful Death Act is the age set out in that law. In fact, the legislature included in the Florida Wrongful Death Act a line that says exactly that. That language reads, in relevant part, “The term “minor children” is defined as children under the age of 25, regardless of the age of majority established by any other statute. Fla. Stat. § 768.18(2)

What Type of Damages Can Be Recovered?

Damages that are most often sought after in wrongful death lawsuits include compensation for:

  • Funeral, burial, medical, hospital expenses
  • Pain & suffering experienced prior to death (degenerative diseases / debilitating injuries)
  • Losses incurred by the deceased’s family: loss of wages; mental anguish; financial support; companionship; parental guidance (in cases where deceased has children)
  • The pecuniary compensation provided for by wrongful death lawsuits serves to void any financial issues related to the passing of a loved one.

What Can A Minor Child Recover?

A child of any age may recover the value of lost support and services from the date of the decedent’s injury to the date of death, with interest. He may also recover for future loss of support and services from the date of death, but his recovery will be limited to the present value.

What If No Surviving Spouse?

If the decedent dies without leaving a surviving spouse, a child of any age may also recover for lost parental companionship, instruction, and guidance, as well as for mental pain and suffering from the date of the decedent’s injury. 

However, adult children may not recover these damages if the death was caused by medical negligence. Fla. Stat.  § 768.21(8).

Death Of A Child

Parents of a child of any age may recover from loss of support and services, future loss of support and services, and mental pain and suffering. However, unless there are no other survivors, parents of an adult child may not recover damages for mental pain and suffering.

If the adult child dies as a result of medical malpractice and dies without other survivors, the parents may not recover damages for mental pain and suffering since those are prohibited by Florida’s Medical Malpractice Act.

So, as you can see from this brief overview, Florida’s Wrongful Death Act makes the age of the decedent and the survivor relevant for evaluation. If you or your family is dealing with a potential wrongful death case and desires a free consultation with a board-certified Florida personal injury lawyer , please do not hesitate to contact us on the web at zarzaurlaw.com or by phone at 855HireJoe.

WATCH OUR YOUTUBE VIDEO HERE >

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

Wrongful Death Series Part 5: Statute Of Limitations On Florida Wrongful Death Cases.

The statute of limitations All civil cases have an expiration date. This date is known as the “Statute of Limitations.” The statute of limitations is the date upon which your claim must be filed, or you lose the right to assert it forever.

The statute of limitations is an unforgiving deadline, and it is nearly impossible to argue any exceptions to the filing of a case after the statute of limitations.

This is also true in Florida Wrongful Death cases or cases brought under Florida’s Wrongful Death Act. The statute of limitations in Florida for wrongful death cases is 2 years from the date of the death. 

 How The Statute Works

Let’s assume that your relative dies on July 15, 2020. You seek out counsel for a possible wrongful death case, and this means that your lawyer must file the lawsuit on or before July 14, 2022. If the lawsuit is not filed by that date or is filed with the improper plaintiff or defendant, it may be lost forever.

Don’t Wait Until The Last Minute

Good lawyers make it a habit to not wait and file cases at the last minute, and you, as a client, should not wait until the last minute to seek out a lawyer for a wrongful death case. In fact, since the Florida wrongful death process requires that the probate court establish who the proper party is to bring the wrongful death case, all of this process should start as soon as possible following the death. 

Further, as with any legal matter, valuable evidence is lost the more time passes from the death. Hiring an experienced wrongful death lawyer will also mean that the firm’s investigator and medical/nursing experts will have more time to conduct their investigation into the death.


EVIDENCE IS LOST THE MORE TIME PASSES FROM THE DEATH


Investigation Takes Time

Death cases also mean that a private autopsy has to be conducted, which is much more preferable to occur before the funeral home has modified the body. All of these things that have to occur in wrongful death cases, from investigations and autopsies to expert reviews of the scene and medical care, take time. The lawyer handling your file will want to perform as many of these functions before filing a suit as possible, some of which are required to be performed before the case is filed.

So, the earlier you get the wrongful death lawyer, the better the opportunity for the law firm to handle the matter properly.

There are some limited extensions to the statute of limitations in rare circumstances.  You should never assume that one of those rare exceptions will apply to your case.  You should assume only that your wrongful death case will be subject to Florida’s 2 year statute of limitations.

WATCH OUR YOUTUBE VIDEO HERE >

As you can see there are many complicated legal issues involved with the statute of limitations. Failure to file timely can extinguish even the most worthy case. This is why you need to consult a board-certified Florida personal injury lawyer as soon as possible if you have a claim.

Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

If you’ve been the victim of an auto accident, it’s important that you don’t make any rash decisions. Instead, follow the car wreck checklist and put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

 

Sources:
https://www.findlaw.com/state/florida-law/florida-wrongful-death-laws.html

Pensacola Personal Injury Lawyers – Car Accident, Wrongful Death, Malpractice

 

 

Wrongful Death Series Part 4: Survivors And Damages In Florida Wrongful Death Cases.

Wrongful Death Series Part 4: Survivors And Damages One of the initial items that should be considered by a lawyer handling a Florida Wrongful Death case is determining who the proper parties, claimants, and survivors will be.

Florida’s wrongful death provision designates the proper party to bring a wrongful death action in pertinent part as follows:

The action shall be brought by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages, as specified in this act, caused the injury resulting in death.

Section 768.20 of the Florida Statutes: This means that the only person that can legally bring a Florida Wrongful Death case is the personal representative.

Our firm has separate videos and blogs on this topic. Click here to watch part 1 of this series.

Nomination Of The Personal Representative

The initial question about who the plaintiff will be is resolved by the probate court in the nomination of the personal representative. Consideration of the proper claimants and survivors under the action is a more complex question.

First, the estate of the decedent is always a party to a Florida Wrongful Death case. The estate is basically the financial transactions and accounts of the decedent. The estate has to handle accounts payable, checking accounts, credit card companies, loans, mortgages, and other financial accounts that were in the name of the decedent. The estate will also be a claimant in the wrongful death case for all things related to expenses associated with the death of the decedent, like medical and funeral expenses, that are recoverable in the wrongful death case. The estate may also collect for loss of earnings from the date of the decedent’s wrongful injury until the date of death. Following death, all such earnings claims will be transferred as net accumulation claims to the survivor(s).

Survivors Of The Decedent

Other than the estate being a claimant with limited potential to recover certain financial losses, the lion’s share of damages collectable from a Florida Wrongful Death case will be made on behalf of the survivors of the decedent. A surviving spouse from a legal marriage is a survivor under Florida’s Wrongful Death Act. The marriage must be legal and must have occurred prior to his/her death. Florida law does not recognize any common law marriage entered into after 1968 unless the claimant and his spouse are permanent residents of a state that does recognize common law marriage.

What About Divorce?

A divorce that is final will terminate the survivorship status of a spouse. A divorce that is pending, however, does not terminate such status. The court hearing the wrongful death case can consider the fact that the parties were intending to be divorced at the time of death, and this will likely affect the amount of any recovery.

Surviving Children’s Age And Medical Malpractice Wrongful Death

For purposes of Florida’s Wrongful Death Act, children are also survivors of a decedent. The age of the child doesn’t matter UNLESS the wrongful death case is based upon medical malpractice allegations. If the case is a medical malpractice wrongful death case, then only minor children will qualify as survivors.

A minor is defined by the medical malpractice amendments to the wrongful death case as any child under the age of 25. A child of any age may collect for loss of support and services from the date of injury to the date of death with interest. He or she may also recover (regardless of age) for future support and services from the date of death.

If the decedent dies without leaving a surviving spouse, a child of any age may also recover for lost parental companionship, instruction, and guidance, as well as for mental pain and suffering from the date of the decedent’s injury. However, adult children may not recover damages if the death was caused by medical malpractice.

Adopted Children and Step-Children

Legally adopted children may also qualify as survivors under the Florida Wrongful Death Act. Also, a legally adopted child loses its right to be classified as a survivor of the biological parent that gave the child up for adoption. Step-children may not recover from the death of their step-parent.

Parents of A Minor Child

Parents of a minor child may recover in a wrongful death action for the value of support and service from the date of injury to death, future loss of support and services from the date of death, mental pain and suffering from the date of injury, and any medical and funeral expenses paid by the parents. Parents of an adult child may also collect this damage so long as there are no other survivors.

Although there is an action for the wrongful death of a stillborn fetus, it is not considered a death under Florida’s Wrongful Death Act. The test for the wrongful death act is the definition of the term “person,” and the law looks for an independent circulation of blood from the mother.

Dependent Relative

A blood relative that is also a dependent of a decedent may also have a claim for loss of support and services following a death.

WATCH OUR YOUTUBE VIDEO HERE >

Joe Zarzaur is a Board Certified Civil Trial Lawyer whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

If you or a loved one is in need of a FREE legal consultation in regards to your wrongful death case, speak with Zarzaur Law’s Florida Wrongful Death Act experts. Put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

Wrongful Death Series Part 3: What Is The Difference Between A Wrongful Death Case And A Medical Malpractice Wrongful Death Case In Florida?

medical malpractice wrongful deathThere is a big difference between a Florida Wrongful Death case premised on a car accident or a boat collision versus a medical malpractice event. Florida’s Wrongful Death Act is set up to give rights to the family of a deceased person when the death is brought on by the negligence or carelessness of a third party or entity. 

Florida’s Wrongful Death Act, however, has been amended by the Florida Medical Malpractice Act. Those changes have a significant effect on all medical malpractice cases and even more on medical malpractice wrongful death cases in Florida.

Statute Of Limitations And The Presuit Process

So, as we have discussed in other blogs related to the statute of limitations in Florida wrongful death cases, the statute of limitations for a Florida wrongful death case is 2 years. However, unlike non-medical malpractice wrongful death cases, those involving allegations of medical malpractice must go through the Florida Medical Malpractice Presuit process BEFORE you can file a lawsuit.

Florida Medical Malpractice Wrongful Death Case 

This means that, in essence, you have less than two years to get everything accomplished since you do not want to file these cases at the last minute and you do not want to have to rely on short extensions allowed for the Presuit rules. For this reason, if you have a medical malpractice case that results in the death of a family member, you should seek out legal advice immediately.

What If No Surviving Spouse or Minor Child?

The Florida Medical Malpractice Act also amended Florida’s Wrongful Death Act by removing the ability for some to sue for wrongful death. The Medical Malpractice Act prohibits certain individuals from recovering damages if they are the victims of medical malpractice and die from it. If you are an individual that dies from medical malpractice in Florida and you do not have a surviving spouse or minor children (under 25), then your survivors cannot bring a case for anything other than the expenses associated with your death and amounts owed to others.

There is no claim for mental pain and suffering since the Florida Medical Malpractice Act has eliminated those cases. I realize that you may think “how can the legislature do that” or “that makes no sense” or “isn’t that age discrimination?” All of those sentiments have been tested in Florida courts, and they have all failed to have the law declared unconstitutional. So, we have to live with this law that basically gives hospitals the right to kill patients if those patients happen to die without surviving spouses or minor children.

If your family is dealing with a Florida wrongful death case that arises from a medical malpractice event, it is imperative that you reach out to a lawyer as soon as possible. For a free consultation with our firm, find us on the web at zarazurlaw.com or call us at 855HireJoe.

WATCH OUR YOUTUBE VIDEO HERE >

Joe Zarzaur is a Board Certified Civil Trial Lawyer whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

If you or a loved one is in need of a FREE legal consultation in regards to your wrongful death case, speak with Zarzaur Law’s Florida Wrongful Death Act experts. Put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

Sources:

Pensacola Personal Injury Lawyers – Car Accident, Wrongful Death, Malpractice

Pensacola Personal Injury Lawyers – Car Accident, Wrongful Death, Malpractice

 

 

Wrongful Death Series Part 2: In A Florida Wrongful Death Case, What Does The Probate Process Involve And Why Is It Necessary?

The stress of a recent death in the family is enough to deal with even without legal considerations. The idea that a wrongful death case also means that there has to be a probate proceeding sounds even more menacing. For law firms that are experienced in handling Florida wrongful death cases, they have probate court issues worked into their internal process so that you only have to hire us to handle both the wrongful death case and the probate action.

The Necessity of the Probate Court

Let’s first discuss the necessity of probate court in a Florida wrongful death case. First, while we are alive, a person (unless adjudicated incompetent) handles their own business.

For example, you open checking or savings accounts, buy and sell property, enter into service agreements, apply for and use credit cards, and make other personal and financial decisions. When a person dies, and until a probate court has determined who should act on behalf of the estate, no one can legally do these personal and financial activities on behalf of the decedent. So, the law allows a living person to be granted authority by the probate court to act on behalf of the decedent. This person in Florida is called the Personal Representative.

Naming a Personal Representative in Your Will

How someone becomes a representative depends upon the facts of each case. The most direct way to become a personal representative is for the decedent to name a personal representative in his or her will. Then the probate court will review the will and a presumption will be made by the probate court that the person named as the personal representative by the decedent will be the personal representative.

This presumption can be rebutted by evidence showing that the person named in the will is not qualified to be a personal representative in Florida (i.e., a felon or minor), but most of the time, the probate court will defer to the choice of the decedent as personal representative. As you can imagine, however, most people that die unexpectedly (most of our wrongful death clients) do not have a will.

What If A Person Dies Without Naming A Personal Representative?

If a person dies without a will specifying a personal representative, then the choice is up to the probate court. The court will have a strong preference for a surviving spouse or an only adult child, but otherwise, the probate court will conduct an evidentiary hearing to determine the person best suited to handle the job of a personal representative.

The Job of the Personal Representative

The job of a personal representative is to basically serve as a trustee on behalf of the estate and all of the survivors of the estate. The personal representative must keep and safeguard all property of the estate and must provide regular reports to the probate court about the winding down of all business of the estate.

If there is a wrongful death case related to a decedent, then that too becomes the business of the estate and the personal representative is charged by probate law to manage that case on behalf of the survivors and the estate.

Given the important nature of the personal representative and how they act as trustees for the estate and the survivors, the probate court is there to ensure that the person serving has the character and capacity to serve on behalf of others.

Details Are Important To The Wrongful Death Case

The probate court will require the personal representative to provide a detailed accounting of all of the assets and liabilities of the estate and will trust that the personal representative will take no action that is adverse to the interests of the estate or the survivors. In a wrongful death case, the personal representative acts as the plaintiff’s representative and often has no financial stake in the outcome of the lawsuit.

Acting on Behalf of All of The Survivors

Sometimes the personal representative is also a survivor of the decedent, and then they do have a financial interest in the lawsuit, but as the personal representative must act on behalf of all survivors, they cannot take any action that would unfairly deplete another survivor’s share of the estate.

As you can see, handling a Florida Wrongful Death case includes having a good handle on the probate process.  The entire case flows through the probate court process, and it is imperative that the lawyer handling your family’s wrongful death matter also have a really good grasp of the probate issues that will be involved in order to provide the best advice possible.

WATCH OUR YOUTUBE VIDEO HERE >

Many times, the personal representative is not even a survivor and cannot collect any damages for the wrongful death action, but the probate court feels they are best suited to manage the case affairs and, therefore, they are named the personal representative.

Joe Zarzaur is a Board Certified Civil Trial Lawyer whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

If you or a loved one is in need of a FREE legal consultation in regards to your wrongful death case, speak with Zarzaur Law’s Florida Wrongful Death Act experts. Put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

Sources:

Pensacola Personal Injury Lawyers – Car Accident, Wrongful Death, Malpractice

Pensacola Personal Injury Lawyers – Car Accident, Wrongful Death, Malpractice

 

Wrongful Death Series Part 1: What Is The First Legal Step To Pursue A Florida Wrongful Death Case?

Florida Wrongful Death CaseThe first step in pursuing a Florida wrongful death case is to determine who can legally bring the case. In order to hire a lawyer to evaluate or investigate a potential Florida wrongful death case, you must have the authority to hire the lawyer. To explain the source of this power or authority, we must first discuss the evolution of Florida wrongful death cases.

The law in the United States is basically a creature of British common law. In other words, our laws have generally evolved from the laws of the country that had the most influence on our country before we gained our independence.


Common Law: Laws That Come From Long-Standing Court Decisions Over Many Years Are Called “Common Law.”


Common Laws vs. Statutory Laws

Common laws are different from statutory laws since they come from court decisions over many years, while statutory laws come from laws that are passed by either a city, county, state, or federal legislative body. Legislative bodies pass laws that they feel are necessary to make sure that their citizens have the rights they deserve. These rights change over time as society changes, and therefore, legislative bodies pass laws to address concerns raised in our ever-evolving world.

Under common law, there was no civil right to recover damages for a person’s wrongful death. You could recover for the damages suffered by the person from the time of injury until their death, but as soon as they died, the damages under common law ceased to exist. The common law based this decision on various factors like the fact that many times the cause of death is also a criminal act and therefore the civil action would be part of the criminal case; the near impossibility of placing value on human life; and that historically, tort damages (like injury, pain, and suffering) could only affect a living human being and once the human is dead, his/her damages would cease to exist.

The Lord Campbell Act

In 1846, the Lord Campbell Act was passed in England, which provided a statutory right of recovery for the wrongful death of a relative. This Act ended the prohibition on the recovery of civil damages for the wrongful death of a relative and gave rise to what would eventually be called the Florida Wrongful Death Act. In 1883, Florida passed a version of the Lord Campbell Act, making it possible for someone to bring a Florida wrongful death case on behalf of a deceased relative.

Florida Wrongful Death Act

Over the years, the initial Florida Wrongful Death Act has been revised, and a substantial revision occurred in 1972. The reason that discussion of the statutes and revisions is important is that a wrongful death case is a 100% creature of the statute, and if the statute doesn’t provide for something, then there is a presumption that the legislature affirmatively concluded that it should not be permitted.

Surviving Minor Children

For example, the initial Florida Wrongful Death Act didn’t include a clear definition of minor children and prohibited them from recovering if there was a surviving spouse.  The Florida Wrongful Death Act was later defined by the legislature as any “unmarried” child under 21 years of age. After several other revisions to the Florida Wrongful Death Act, the term “survivor” now includes more than just minor children and does not require the absence of a surviving spouse and allows recovery for the children even if there is a surviving spouse.

Who Has The Right To Bring A Florida Wrongful Death Case?

The Florida Wrongful Death Act must speak to the issues involved or they do not exist. This includes who has the right to bring a Florida wrongful death case. The Florida Wrongful Death Act states that the only party who can legally hire a lawyer and pursue a wrongful death case is the personal representative.

Personal Representative

A personal representative is a person that is appointed by the probate court of the county where the decedent lived. The personal representative is appointed by the probate court and preference is given to those chosen in a will by the decedent and/or the surviving spouse.

If the person dies without a will (which is the vast majority of people), then the probate court will evaluate the surviving relatives and if there is more than one immediate next of kin, like two siblings and no surviving spouse, then the court will allow the relatives to agree on whom to serve as personal representative or will conduct an evidentiary hearing to determine who is best suited to serve as personal representative.

The Probate Court Process

accident attorney PensacolaSo the first step in the Florida Wrongful Death process is the probate court process to nominate a personal representative. Our firm has a probate lawyer that we utilize for our wrongful death cases, and this process can take as little as a week and at most months to conclude. Obviously, the more disagreement about who would be the best personal representative, the longer this process will take. So, hiring a personal injury lawyer for a Florida wrongful death case should also involve a discussion about the personal representative since that is the only person that can legally direct the wrongful death case and he/she is the only person who has the legal right to bring such an action in court.

Keep in mind that the Florida Wrongful Death Act also provides a definition for “survivors” of a deceased relative for purposes of the Act. The Florida Wrongful Death Act also defines what type of damages each survivor is entitled to request.

WATCH OUR YOUTUBE VIDEO HERE >


Many times, the personal representative is not even a survivor and cannot collect any damages for the wrongful death action, but the probate court feels they are best suited to manage the case affairs and, therefore, they are named the personal representative.

Joe Zarzaur is a Board Certified Civil Trial Lawyer whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.

If you or a loved one is in need of a FREE legal consultation in regards to your wrongful death case, speak with Zarzaur Law’s Florida Wrongful Death Act experts. Put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.

Sources:
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0768/Sections/0768.21.html