You may have found that no attorney will speak with you about what happened, except to refer you to The Florida Bar or a local bar association. If that has been your experience, let me explain what may be happening.
Do either of these describe your family?
Test 1
Your parent died
- Your parent had no surviving spouse.
- You were 25 or older when your parent died.
- You suspect that something a medical provider did, or failed to do in providing medical care, contributed to the death.
If the matter is treated as medical negligence, Florida law bars you from recovering damages for lost parental companionship, instruction, and guidance, and for your mental pain and suffering.
Test 2
Your adult child died
- Your child was 25 or older.
- Your child left no other survivors as defined by Florida’s Wrongful Death Act.
- You suspect that something a medical provider did, or failed to do in providing medical care, contributed to the death.
If the matter is treated as medical negligence, Florida law bars you from recovering damages for your mental pain and suffering.
These exclusions come from section 768.21(8), Florida Statutes. They do not establish whether negligence occurred. They determine which damages are unavailable if the claim is classified as medical negligence and the family satisfies one of the tests above.
The merits do not determine whether the exclusion applies
For purposes of excluding these damages, the statute does not first ask whether the provider was negligent, whether negligence caused the death, whether the death was preventable, how compelling the records are, how serious the alleged conduct was, or how close the family relationship was.
The exclusion turns instead on the legal classification of the claim and the family’s statutory status. It can therefore affect whether anyone can afford to investigate the merits before negligence and causation have been determined.
Why an attorney may decline before investigating what happened
- Personal and professional exposure. Attorneys may fear court sanctions, personal fee or cost exposure, reputational harm, and possible disciplinary referral or consequences associated with accepting, investigating, or pleading the matter.
- Classification uncertainty. The attorney must decide whether the alleged conduct constitutes medical negligence under National Deaf Academy, LLC v. Townes, ordinary negligence, or an independent statutory or administrative wrong.
- Reclassification risk. Even if the attorney concludes that Chapter 766 does not apply, a judge may later classify the claim as medical negligence.
- Procedural consequences. Reclassification can result in dismissal for failure to comply with Chapter 766’s presuit requirements and can create the financial or professional exposure feared at the outset.
- Mandatory damages exclusion. If the matter is treated as medical negligence and your family satisfies either test above, section 768.21(8) bars the specified damages. The exclusion does not depend on the strength of the evidence or seriousness of the alleged negligence.
- Economic-only compensatory recovery. Depending on the facts and statutory requirements, what remains can include lost support and services, medical or funeral expenses, lost earnings between injury and death, and prospective net accumulations of the estate.
- Why the remaining recovery can be insufficient. Economic damages measure provable financial loss, not the value of the life or relationship lost. If the person who died was retired, had limited earnings, consumed most income personally, provided little quantifiable financial support, or died shortly after the injury, the legally recoverable economic damages can be small or nonexistent.
- Economic impossibility. The remaining recovery must support the expense and risk of obtaining and reviewing records, retaining qualified medical experts, completing presuit investigation, litigating causation, and confronting well-funded defendants. When it cannot, counsel may have no economically rational basis to undertake the case regardless of how troubling the facts appear.
- Merits never reached. The statute eliminates the family’s noneconomic damages. The resulting inability to obtain economically willing counsel can then prevent pursuit of even the limited economic damages that remain. No court or jury determines what happened.
Medical care being involved is not enough by itself
A death does not become a medical-malpractice case merely because it occurred in a hospital or involved a medical provider. Under National Deaf Academy, LLC v. Townes, 242 So. 3d 303 (Fla. 2018), courts examine whether the alleged wrongful act is directly related to medical care or services and whether deciding negligence requires application of the professional medical standard of care. The practical problem is that families and attorneys must anticipate how a court will classify the allegations before the merits are adjudicated.
What you can do now
- Preserve the records and communications already in your possession.
- Request medical and billing records promptly.
- Write a chronology while memories and dates are fresh.
- Identify the personal representative, surviving spouse, children, parents, and potentially recoverable economic losses.
- Seek independent Florida legal advice promptly because limitation and repose periods can expire.
- Avoid publishing private medical information while you are still deciding how it should be used.
- Use the site’s permission-controlled Share Information form if you choose to contribute your experience.
Continue to What the Law Does, the Glossary, Medical-Record Reform, or Take Action.
This general educational page does not determine whether a particular claim exists, whether Chapter 766 applies, whether another category of damages remains available, or whether a deadline has expired. It is not legal advice.