Miami Wrongful Death Attorney
Representing the Families of Wrongful Death Victims in South Florida
While death is a normal part of life, it should not be the result of human negligence. When death occurs because of the fault, error, or the intentional act of another party, the event is tragic, and survivors of the deceased deserve to be compensated for the unexpected and preventable loss of life.
At the law offices of Dolan Dobrinsky Rosenblum Bluestein, LLP, our Miami wrongful death attorneys have helped the surviving family members of those who have died because of the wrongful or neglectful acts of another seek compensation for losses. We know that you have questions about what to do and how to move forward after your loved one dies – let us help you seek answers.
What is Wrongful Death?
If you have a loved one who was recently involved in a situation that resulted in them dying in Florida, you may be wondering if their death was a wrongful one. If their death was one that could have been prevented, you will need to “file an estate claim in probate court so you can sue on their behalf,” states The Balance. The law limits the amount of time you have to file a wrongful death claim, so you should examine your situation carefully and proceed in a timely manner.
Only certain family members are allowed to file a wrongful death estate claim. Some states have laws that allow siblings, extended family and grandparents to do so. However, many states do not, making children and surviving spouses the only parties who are eligible to exercise this right.
Deaths that are unintentional or that are caused by negligence can occur in many ways. For example, your loved one could have been the victim of a medical malpractice where a medical error occurred or they could have been involved in a fatal car accident during a police chase. Regardless of the circumstances surrounding your relative’s demise, your claim must meet certain criteria.
That criteria includes your family member’s death must have caused some type of loss or damage to the remaining family members. Damages can include pain and suffering, your loved one’s lost wages, burial expenses and medical bills. You must also be able to show proof that your loved relative’s death was not a consequence of their own making. In other words, their actions or lack of action must not have been a contributing factor to their death. Their death must also be the result of someone else’s negligence.
Wrongful death claims are considered civil lawsuits that must be substantiated with proof which makes them quite challenging to prove. However, the right guidance can improve your chances of success.
Types of Wrongful Death Cases Our Law Firm Handles
A death is “wrongful” when it occurs as the result of the negligence – defined as the failure to act with a reasonable degree of care – or the wrongful act of another party. There are many causes of wrongful death reported in Miami and throughout South Florida every year, including, but not limited to:
- Car accidents;
- Motorcycle accidents;
- Bicycle accidents;
- Pedestrian crashes;
- Medical malpractice;
- Injuries from defective products;
- Slip and fall accidents;
- Premises liability accidents; and
- Large truck and commercial vehicle crashes.
Proving Liability for a Miami Wrongful Death Case
If you believe that your family member would not have died but for the wrongful act of another party, you must prove negligence to hold the party liable and recover compensation for losses. You must prove the following:
1. The Defendant Owed the Victim a Duty of Care
The first thing that you must prove is that the defendant (the person you are filing a lawsuit against) owed the deceased a duty of care. A duty of care is almost always implied, such as in the case of a car accident resulting in death; all drivers have a duty of care to others on the road to operate their vehicles in a safe and reasonable manner. Duty of care can be more difficult to determine in cases of premises liability, specifically those involving trespassers.
2. The Duty of Care Was Breached
The second thing that you must prove is that the defendant breached the duty of care owed to your loved one. This is known as acting negligently. For example, speeding is an act of negligence, because it is unreasonable and puts others in danger, and because it is illegal. Failing to adhere to the medical standard of care by prescribing a patient a dangerous medication is also negligent. Another example of negligence is manufacturing a product that is hazardous for consumer use.
3. The Breach was the Cause of Death
Another important element of a wrongful death claim is proving that the breach of the duty of care was the cause of death of your loved one. If you cannot prove causation, you will not have a case.
4. Damages Have Been Suffered
Finally, you must prove that the accident resulted in damages. While death is an obvious loss, other damages that family members may suffer include funeral and burial expenses, lost wages and earnings, loss of guidance and companionship, medical expenses prior to death, and more. Damages are often both instantaneous and felt long-term.
Surviving Family Members Deserve Full Compensation for Their Losses
A wrongful death claim in Florida must be brought forth by the personal representative of the deceased’s estate. However, all potential beneficiaries – which refers to those who are blood relatives who are partially or wholly dependent on the deceased – can be named in the wrongful death claim, and may seek damages. There is nothing that can fully compensate you when you suffer the death of a loved one; wrongful death is a catastrophic occurrence that will change your life. Filing a wrongful death lawsuit against the responsible party, however, can help you to recover compensation for some of the losses you have suffered.
Who may file a wrongful death case in Florida?
Florida law allows two types of claimants to sue for wrongful death.
- The first type includes the decedent’s spouse, children, parents and dependent blood or adoptive relatives. They are collectively referred to as “survivors.”
- The second category is the “estate,” which is the legal collective designation for the decedent’s property that is left behind.
The estate’s beneficiaries include those who get a portion of the estate under the terms of a will or of Florida’s intestacy statutes, in the absence of a will. The estate can sue through a personal representative, who files a claim on behalf of the beneficiaries.
When Can A Family Member File A Wrongful Death Claim?
You can file a wrongful death claim if your family member’s death was caused by another person either deliberately or as a result of negligence.
- A motor vehicle accident that was caused in whole or in part by another person;
- A death in a hospital or nursing home that was caused by malpractice, a prescription drug error or fall;
- A death that occurred on someone else’s property due to an unsafe property condition; and
- Death from an assault at a hotel or resort that was caused by negligent security.
What Damages Can Family Members Recover For Wrongful Death?
The death of a family member is devastating both emotionally and financially. If the death was caused by the negligence of another party, Florida law allows family members to seek compensation for the losses they have experienced. In Florida, spouses, minor children, parents and other family members may seek compensation for loss of services and support, loss of companionship and other damages resulting from the death. The deceased person’s estate can also recover compensation for financial losses.
The following summarizes damages family members can seek for wrongful death in Florida:
- All family members can recover compensation for lost support and services from the date of the death and in the future.
- Spouses can also recover for loss of companionship and protection, and for emotional pain and suffering.
- Minor children can also recover compensation for loss of companionship, instruction and guidance, and for emotional pain and suffering.
- Parents of a deceased minor can also recover compensation for emotional pain and suffering.
- The survivor who paid for medical and funeral expenses can recover compensation for those expenses.
- The personal representative of the deceased person’s estate can recover compensation for loss of future earnings, less amounts paid to survivors for loss of support.
Damages available to the estate
The estate may recover damages for medical and funeral expenses due to the injury, lost earnings and net accumulations. Recovery for lost earnings may be available in a case where the decedent did not die immediately after the accident but did lose earnings due to injuries. Net accumulations refer to the sum of what the decedent would have left behind had he or she lived out a natural lifespan. Projecting net accumulations can involve complex calculations and projections based on the decedent’s earning potential, investments, prior earnings, expenses, financial habits and many other factors.
Additional damages available to survivors
Survivors may recover additional forms of damage for mental pain and suffering, loss of companionship, loss of guidance (if a parent died), loss of support and services. Support and services generally consist of practical tasks the decedent used to perform, which the survivors will now have to pay someone to do. On the other hand, loss of companionship may be difficult to quantify and will often depend on individual circumstances, such as the specific relationship between the decedent and the survivors.
In some cases, damages may be unavailable or limited. For example, Florida places a cap on non-economic damages in wrongful death cases of medical malpractice, although courts have carved out exceptions under specific circumstances. Evaluating damages in a Florida wrongful death case can offer complex challenges. An experienced attorney can assess your case and provide the information and support you need to proceed.
For specific information, seek prompt assistance from a Florida lawyer who focuses on wrongful death law. Family members have a limited time to file a wrongful death claim.
How Are Damages Determined in a Florida Wrongful Death Lawsuit?
The loss of a loved one is a traumatic event. Family members congregate to remember and grieve the dead, and it sometimes feels impossible to carry on. However, if your loved one died because of someone else’s carelessness or wrongful act, you might be able to receive compensation in a wrongful death lawsuit.
Florida’s wrongful death law allows certain family members to receive “damages,” which are a sum of money for certain economic and non-economic losses you have suffered. Though this money can never replace a loved one, it can provide peace of mind and some measure of financial security.
You Can Receive Compensation for Economic Losses
A loved one might have provided an economic benefit that is now gone since he or she died. Generally, you can receive compensation for these economic losses. Florida’s wrongful death law allows survivors to receive damages for income the deceased would have earned had he or she lived.
Calculating this amount can be tricky. However, a jury will look at many factors, such as the age, skill, and education your loved one had at the time of death. A deceased who was college educated and making $80,000 a year at age 35 would have earned more over a lifetime than someone who had a high school diploma and was making $30,000 at age 55.
Other economic losses include lost benefits, like health insurance or pension or retirement benefits that were lost when the deceased died. Survivors can also recover money for lost services. For example, the deceased might have cooked, cleaned, and done laundry, and you can receive damages to hire someone else to do this now.
You Might Receive Money for Non-Economic Losses
A loved one’s death does more than negatively affect your wallet. You probably also have suffered losses that are harder to measure in monetary terms. Nevertheless, these emotional and intangible losses are very real. Many of our clients have received damages for the following:
- Loss of guidance, protection, and companionship; and
- Pain and suffering.
Not all survivors qualify for these types of damages, so you need to closely analyze your individual circumstances. An experienced attorney can also estimate how much you could possibly receive.
Wrongful Death Cases Are Challenging
Florida’s wrongful death statute has allowed grieving family members to get compensation when their loved ones have died due to someone else’s wrongful acts. Without this statute, many family members would be unable to support themselves financially. They also would be denied a measure of justice of seeing the person responsible be held liable in court.
Wrongful death lawsuits are civil cases, like car accidents and dog bite claims. However, they are quite challenging compared to other personal injury cases. You will want an attorney in your corner who has deep experience in this area of law so that you can bring a successful claim.
Finding Evidence of Wrongful Death is Difficult
If you were injured in an accident but lived, then you could tell an attorney what happened and testify in a lawsuit against the person who hurt you. With wrongful death cases, the victim unfortunately is no longer with us. That doesn’t mean it is impossible to prevail in a wrongful death suit. However, it does mean that it is more challenging to find evidence.
At our firm, we can interview anyone who might have witnessed the incident that claimed your loved one’s death. We can also use medical records as evidence to help establish how the accident unfolded.
Other helpful evidence might include physical evidence, surveillance video, and the testimony of the defendant. It takes time and legal knowledge to find this evidence, which is why hiring an experienced attorney is essential.
Timing a Wrongful Death Lawsuit is Complicated
Some wrongful death cases are also criminal cases. It is often helpful to wait until the criminal case has concluded before bringing your civil case, since you might be able to force the defendant to testify. Understanding how a wrongful death cases interacts with a possible criminal case is necessary for gaining an advantage.
Valuing a Loved One’s Death Requires Experience
In a wrongful death claim, family members can receive compensation for things like the loss of services or support you received, along with the loss of companionship and guidance. These losses are very hard for a lay person to assign a dollar value to, but an experienced Miami wrongful death attorney will be able to decide how much compensation to seek.
Resources for Grieving Victims
If you have recently lost a loved one, taking legal action may be the last thing on your mind right now. You are likely more concerned with adjusting to the toll the loss is taking on you and your family and trying to cope with your grief.
However, at a certain point, exploring your legal options can prove to be more helpful than you may realize. If you are struggling with the loss of a loved one, there are a few reasons why you may want to consider taking legal action even though it may seem overwhelming at first.
Filing a wrongful death lawsuit in the wake of a fatal accident can help people get the answers that often go unanswered in the absence of legal action. For instance, negligent parties may ignore requests for details or provide some type of blanket-statement in an effort to put the issue to rest as quickly as possible. A legal claim can prompt parties to disclose previously unknown or concealed information.
Additionally, while money cannot repair the devastation of a loss or undo a fatal accident, it can compensate survivors for damages, both economic and non-economic. People can be awarded money to cover relevant expenses and to acknowledge the many ways their lives have been affected by a loss which can provide some much-needed financial relief.
A wrongful death claim can also send a powerful message that negligent or reckless parties will be held accountable for their actions or inaction. This can instill a sense of justice and relief that the tragic incident is not ignored.
We understand that assessing your legal options and pursuing compensation may not be priorities for you in the wake of a devastating loss. However, we can help you explore your options for a resolution when the time comes. Here are some resources you may be interested in.
Miami Wrongful Death FAQs
Losing a loved one is always a traumatic experience regardless of the circumstances. In many cases there is nobody at fault for a family member’s death. But when there is a responsible person or persons, the survivors may have the right to pursue a wrongful death action under Florida law. Because many people are unfamiliar with the specifics of how wrongful death claims work, below are answers to some of the more common questions we get at Dolan Dobrinsky Rosenblum Bluestein, LLP, on the subject.
What is wrongful death?
Wrongful death is a special type of personal injury lawsuit created under state law. The Florida Wrongful Death Act defines a wrongful death as any situation where a person’s death “is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person.” In a normal personal injury case, the victim would be able to personally sue the negligent party for damages. Since the victim in a wrongful death lawsuit is deceased, the Wrongful Death Act vests the right of action in the personal representative of the victim’s estate, who acts for the “benefit of the decedent’s survivors and estate.”
It is important to distinguish “wrongful death” from murder. The latter is a criminal charge, which means the prosecution has to prove the defendant’s guilt “beyond a reasonable doubt.” Wrongful death, in contrast, is a civil matter, so the estate and survivors only need to prove the defendant’s liability by a “preponderance of the evidence.” Furthermore, intent is not ordinarily an element of a wrongful death claim. It is sufficient to prove the defendant was merely negligent.
Who am I able to sue for wrongful death?
The answer to this depends on the circumstances of the victim’s death. For example, let’s say Mary is killed in a car accident caused by a drunk driver. The personal representative of Mary’s estate could file a wrongful death lawsuit against the drunk driver. And if the driver was operating his employer’s vehicle at the time, the employer could also be named as a defendant.
But suppose Mary was alive when she got to the hospital and subsequently died as the result of negligence on the part of the surgical team. In that scenario, the estate could file a wrongful death claim against the doctor and possibly the hospital as well. Or maybe the doctors did nothing wrong but a defective medical device used in the surgery later caused Mary’s death. The manufacturer of the device could then be sued for wrongful death.
How is the amount of damages determined? What are punitive damages?
Section 768.21 of the Florida Statutes, which is part of the Wrongful Death Act, establishes the type of damages available in a successful wrongful death lawsuit, which include:
- the victim’s medical and funeral expenses;
- the loss of the victim’s “support and services” to the survivors;
- if the victim was married, the loss of “companionship and protection” of their spouse, as well as the accompanying “mental pain and suffering”; and
- if the victim had minor children (or all children if there was no surviving spouse) their loss of “parental companionship, instruction, and guidance,” as well as their pain and suffering.
The court may also award punitive damages if there is sufficient evidence of a defendant’s “gross negligence” or “intentional misconduct.” Punitive damages are designed to punish egregious behavior rather than compensate the estate or survivors, so when they are awarded, the amounts often substantially exceed the total compensatory damages.
Damages may be awarded to both the estate and any “survivors” of the victim, which include their spouse, children, parents, or any blood relative or adoptive sibling who depended on the deceased for support. It is therefore essential when bringing a wrongful death lawsuit to properly identify all survivors and the relationship to the victim at the outset.
In a case with multiple defendants, how are damages divided?
Florida applies two rules that affect a wrongful death plaintiff’s recovery against multiple defendants. The first is the rule of “pure comparative negligence.” In plain English, this rule states that the jury must apportion fault for wrongful death among all responsible parties, including possibly the victim. For instance, if there are two defendants in a wrongful death case, the jury could decide Defendant No. 1 is 50 percent responsible for the victim’s death, Defendant No. 2 is 30 percent responsible, and the victim himself was 20 percent at-fault. In that scenario, the estate and survivors would be entitled to recover 80 percent of the total damages awarded.
This brings us to the second important legal rule, which is known as “pure several liability.” This basically means that you must separately recover damages from each defendant. So taking the above hypothetical, you can only recover 50 percent of the final wrongful death award from Defendant No. 1, who is not legally responsible for the 30 percent of the damages assigned to Defendant No. 2.
What is the Statute of Limitations for filing a wrongful death claim for Miami, FL?
In general, a wrongful death lawsuit must be brought within two years of the date of the victim’s death. But if the wrongful death was the result of an intentional criminal act–i.e., murder or manslaughter–than Florida law waives the statute of limitations altogether. In certain other cases, the statute of limitations may be temporarily stopped or “tolled” if the plaintiffs did not know about–or could not have reasonably discovered–the negligent act right away. This often comes up in wrongful death claims arising from medical malpractice, as a physician’s mistake may not be discovered for several months or years after the victim’s death.
Is there a maximum recovery for noneconomic damages in Miami, FL?
Florida legislators attempted to impose caps on noneconomic damages in wrongful death claims arising from medical malpractice. These caps were $500,000 per wrongful death claim, regardless of the number of survivors. In a 2014 decision, Estate of McCall v. United States, the Florida Supreme Court ruled these caps were unconstitutional.
Are all state laws the same regarding wrongful death? How is Miami different?
Since wrongful death is a creature of statute, it can and does vary from state-to-state. For example, some states do not allow punitive damages as Florida does. Other states impose a statute of limitations of 1 or 3 years, rather than the 2 years required by Florida law. Other states also practice the rule of “joint and several liability” rather than Florida’s “pure several liability,” which means when there are multiple defendants, each one can be held individually responsible for the entire verdict.
Are the survivors entitled to recover damages for their emotional distress?
Yes, as noted above, the survivors’ “mental pain and suffering” is compensable as non-economic damages.
What are the economic damages that the survivors are entitled to in a wrongful death case?
Economic damages refer to direct financial losses that are reasonably quantifiable. For instance, if the survivors paid for the victim’s final medical or funeral expenses, those amounts can be recovered as economic damages in a wrongful death lawsuit. The victim’s estate may also recover lost wages and benefits, as well as any projected loss of future income.
Do I need an attorney to pursue a wrongful death case?
Yes, hiring a lawyer is often the most important step you can take in successfully pursuing a wrongful death claim. Wrongful death is a highly complex area of law. There are a number of procedural requirements that must be strictly followed before a case even gets before a jury. Additionally, it is often necessary to conduct an extensive pre-suit investigation into the circumstances surrounding the victim’s death. Traumatized family members who are still in the process of dealing with their own grief are usually not in the best position to do this.
Can multiple survivors retain different attorneys in a wrongful death case in Miami, FL?
Yes, and there are cases where that may be advisable. But keep in mind that Florida law only permits one cause of action for wrongful death, which is vested in the personal representative of the victim’s estate.
How quickly should I contact an attorney after the death of a loved one?
Calling a lawyer is probably not the first thing you want to do after suffering the loss of a spouse, father, or child. But you should still consider contacting a qualified Miami wrongful death attorney at your earliest convenience once you have dealt with the immediate aftermath of your loved one’s death. As discussed above, Florida does have a two-year deadline to file a wrongful death lawsuit. That may sound like a lot of time, but consider it may take months of preliminary investigation to identify all of the potential defendants. Indeed, any delay in retaining a wrongful death lawyer may lead to the loss of valuable evidence.
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