How do you calculate economic damages in a Florida wrongful death case due to Medical Malpractice?
In the state of Florida, how do you calculate the economic damages available to the adult non-dependent childeren (over age 50) of an elderly parent whose wrongful death was due to medical malpractice? Specifically, can you include lost pension and social security earnings in the calculation, and do you subtract from these projections living expenses?
Generally, an adult, non-dependent child over the age of 50 cannot recover economic damages for an elderly parent unless there are specific issues regarding the dependency and/or income of the deceased. Were you living with your parent? Was your parent's income (pension or social security) paying your mortgage? food? medical care? If your answer is no to all of these, then, I do not think you have a claim at all. Now, the estate will have a claim, and you may be the beneficiary of the estate--but those are not economic damages.
Just building on what counsel in the previous answer stated, the circumstances are determinative of what can be recovered under the wrongful death statute and medical malpractice statute. It does become complicated where the children of the decedent are over the age of 25 and there is no surviving spouse.
Some compensation which may be available, depending on the facts:
-- Loss of earnings of the decedent from the date of injury to the date of death, less lost support of the survivors excluding contributions in kind, with interest.
-- Loss of prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered under certain factual scenarios.
-- Generally, adult children CANNOT recover lost parental companionship in medical malpractice claims.
-- Medical or funeral expenses due to decedent’s injury or death that have become a charge against decedent’s estate or that were paid by or on behalf of decedent, excluding amounts recoverable by a survivor who has paid those expenses
You need to consult an attorney if you are planning to move forward on a wrongful death claim. There are strict time limits for wrongful death claims in Florida, so you should obtain medical records to speed up the process and consult an attorney as soon as possible.
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You need to argue that those be considered in determining net accumulations. See the statutory definition: "Net accumulations" means the part of the decedent's expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy.
Among other things, the defense will fight you by trying to shorten the life expectancy and by claiming that none of the monies received were being saved (i.e. accumulating).