Wrongful Death

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Representing the Families of Wrongful Death Victims in Miami

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, 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.

Contact Dolan Dobrinsky Rosenblum today

You Deserve Justice

 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. Found in Florida Statute 768.21, damages that can be recovered include–

  • Loss of companionship;
  • Loss of support and services;
  • Loss of parental companionship and guidance;
  • Mental pain and suffering;
  • Medical and funeral expenses; and
  • Loss of earnings of the deceased.

At the law offices of Dolan Dobrinsky Rosenblum, LLP, our skilled, compassionate attorneys help families and other survivors who have suffered due to the wrongful acts of others. If you have lost a loved one and need legal advice or assistance on what to do next, contact us today to schedule an initial consultation.

Resources for Grieving Victims

 

Contact Dolan Dobrinsky Rosenblum today

You Deserve Justice

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, 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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