Can I sue for medical malpractice in Florida if wrongful death can't be proven?
9 attorney answers
In addition to the remarks made by the others regarding medical malpractice, your lawyer may also want to investigate the possibility of a claim for violation of the ALF Residents Bill of Rights statute, and the ALF Residents' Rights Civil Enforcement statute -- FS 429.28 and FS 428.29. In any event, you should consult a lawyer without delay to explore the viability of the potential claims.
Get with an attorney as soon as possible. There are a number of complex issues surrounding your case; you should sit down with an attorney and provide them with everything that you have. They will be in the best position to advise you of any causes of actions you may have. Best of luck.
Thank you for your inquiry, and I am sorry for your loss. I would recommend that you consult with an attorney who handles nursing home abuse cases. Although the claim you describe is a wrongful death action arising from medical negligence, you might have a stronger claim by pursing a cause of action for a violation of patient rights under Chapter 400 of Florida Statutes. This would be especially true if your father is not survived by a spouse or minor child. Good luck.
An autopsy is not always needed, and a local lawyer can order his records to investigate. Avvo has a great "find a lawyer" tool to locate a local attorney.
If your claim is that your father died as a result of medical negligence, you would have to prove the causation of the negligent acts or omissions and your father's death.
However, an autopsy is not always required to prove wrongful death. A prerequisite to any claim of medical negligence or nursing home/ALF abuse (including violation of resident's rights) is to obtain an expert opinion of a qualified doctor or nurse that standards were not followed and that such caused injury or death. The circumstances of your case will determine the qualifications of the type of expert that you must find to give this opinion. You are correct to acknowledge that an autopsy would be the most helpful to prove up the causation between the negligence that you suspect and your father's death, but a physician who is qualified to testify as an expert witness may not require that evidence if the medical records and ALF records supply enough proof.
The proof that you would need would have to eliminate any other causes of death than the negligence that is the basis of your claim, and that may be the greatest hurdle to successfully prosecuting the case. I hope you have found this information to be helpful.
I am sorry to hear about your father and the circumstances of his death. To answer your specific question, in Florida the burden of proof is by the "greater weight of the evidence." This means that you would have to prove by the "greater weight of the evidence" that your father's death was caused by the medical negligence or other claimed negligence depending on what causes of action are pursued. Typically, the "greater weight of the evidence" burden is described as tipping the scale ever so slightly in your favor or that it is "more likely than not." Of course, with regard to whether the claimed negligence more likely than not caused your father's death would have to be answered by the qualified medical experts. Finally, in my opinion and in addition to medical malpractice, you could have other potential causes of action under the Florida nursing home laws and/or the Florida laws that protect "vulnerable adults" living in an ALF. So, it would be very important for you to consult with an experienced attorney right away on all these matters particularly because the statute of limitations is most likely a short two (2) years from the date of death.
You really ought to visit with a medical malpractice attorney, and bring as many records as you have to get the attorney started. They will request more records from providers to review and get a complete picture of you father's medical state. Medical malpractice is an expensive endeavor involving experts, testing, etc. Most malpractice attorneys have a no fee consult and because of the cost associated with pursing those actions will give you a very honest indication as to whether they believe you have a case or not. These cases are very fact specific and require more information and detail than can be provided in the question section of this website. Sorry to read of your recent loss.
Please be advised, this information is being provided on an informational basis only. No attorney/client relationship has been created as a result of any information provided by Jonathan J. A. Paul and/or Lewis Roberts, P.A. Legal matters are of significant importance and the selection of an attorney is an important decision. In addition to the information provided in this response, it is always strongly suggested that you seek the advice of an attorney.
i'm sorry for your loss. There's an important question that must be answered before proceeding, and that is: did your father leave a surviving spouse or children 25 years of age or younger? If not, there is no party under Florida law entitled to make a claim for pain and suffering, grief or loss of companionship. If he was a high earner, then there is potentially a claim for his estate. If there is a survivor capable of making a claim, then he/she should consult with an experienced medical malpractice attorney, who may obtain the relevant records for review by the appropriate medical professionals. Best wishes.
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