# Demonstrative Composite Restatement: The Florida Medical-Negligence Death Remedy and Procedure Act

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Modified: 2026-09-13T02:19:42+00:00

> A complete twelve-section analytical restatement of the combined operation of Florida wrongful-death, probate, presuit, records, damages, counsel, limitation, and repose provisions.

Analytical demonstrative, not enacted statutory language: This restatement preserves the operative composite developed for this project. Its numbered sections synthesize separately enacted statutes and Florida Probate Rule 5.030. Every bracketed derivation identifies the actual source or explains where the text states combined operation rather than enacted language.

For orientation before reading the complete restatement, see What the Law Does and the attorney-oriented History timeline. Supporting primary materials appear in the Historical Source Archive.

DEMONSTRATIVE COMPOSITE RESTATEMENT

THE FLORIDA MEDICAL-NEGLIGENCE DEATH REMEDY AND PROCEDURE ACT

Important notice: This is not an enacted statute and must not be quoted or cited as one. It is a demonstrative restatement combining the operative effects of separate Florida statutes and a Florida Probate Rule for the purpose of examining how they function individually and in combination.

§1. DECLARED PUBLIC POLICY AND CONSTRUCTION

It is the public policy of this state to shift the losses resulting from wrongful death from the decedent’s survivors to the wrongdoer.

The provisions governing wrongful death are remedial and shall be liberally construed.

[Derived from §768.17, Florida Statutes.]

§2. EXTINGUISHMENT OF DECEDENT’S CLAIM AND EXCLUSIVE REPRESENTATIVE

When a personal injury results in death, no action for the decedent’s personal injury shall survive, and any pending personal-injury action shall abate.

Any resulting wrongful-death action shall be brought exclusively by the decedent’s personal representative.

The personal representative shall recover only those damages specified by the Wrongful Death Act for the benefit of the decedent’s survivors and estate.

[Derived from §768.20, Florida Statutes.]

§3. FIDUCIARY DUTY AND AUTHORITY OF PERSONAL REPRESENTATIVE

The personal representative shall administer the estate in the best interests of the estate and interested persons.

The personal representative may prosecute or defend claims or proceedings in any jurisdiction for the protection of the estate, the decedent’s property, and the personal representative.

No survivor may independently prosecute the wrongful-death claim, notwithstanding that the damages sought would be recovered for that survivor’s benefit.

[Subsection (1) is derived from §733.602, Florida Statutes. Subsection (2) is derived specifically from §733.612(20), Florida Statutes, which authorizes the personal representative to prosecute or defend claims or proceedings. Subsection (3) states the combined operation of §768.20.]

§4. WRONGFUL-DEATH DAMAGES

For purposes of the Wrongful Death Act, “minor children” means children under 25 years of age, notwithstanding the ordinary age of majority. A child who has reached 25 years of age therefore falls outside the statutory definition of “minor children” and is treated as an adult child for purposes of the damages exclusion described below.

If a decedent has no surviving spouse, the decedent’s children may ordinarily recover for lost parental companionship, instruction, and guidance and for mental pain and suffering arising from the wrongful death.

Notwithstanding subsection (2), an adult child shall not recover those damages when the parent’s death resulted from medical negligence.

The estate may recover only the economic damages specified by law, including qualifying lost earnings, prospective net accumulations, and medical or funeral expenses chargeable to the estate.

If the decedent had neither qualifying lost earnings nor recoverable prospective net accumulations, whether because the decedent was retired or otherwise, and if neither medical nor funeral expenses were borne by or charged against the estate, subsection (4) may provide no substantial compensatory damages.

Accordingly, when the decedent leaves neither a surviving spouse nor a statutorily defined minor child, and the available estate damages described in subsection (4) do not exist as a matter of fact:

the decedent’s personal-injury damages are extinguished under §2;

the adult child’s substituted noneconomic damages are prohibited under subsection (3); and

the death may leave no economically substantial compensatory remedy, notwithstanding the public policy declared in §1.

[Subsection (1) is derived from §768.18(2), Florida Statutes, together with the use of “adult children” in §768.21(8). Subsections (2)–(4) are derived from §768.21(3), (8), and (6), respectively. Subsections (5) and (6) state their operation under the specified factual circumstances.]

§5. MANDATORY REPRESENTATION OF THE EXCLUSIVE REPRESENTATIVE

Unless the personal representative remains the sole interested person, the personal representative shall be represented in probate proceedings by an attorney admitted to practice in Florida.

A personal representative who is an attorney admitted to practice in Florida may represent himself or herself.

A nonlawyer personal representative who does not qualify for either exception may not proceed without obtaining counsel, even though:

§2 designates the personal representative as the exclusive person authorized to bring the wrongful-death claim;

§3 authorizes the personal representative to protect the estate through litigation; and

§4 may eliminate the damages needed to make private representation economically obtainable.

Nothing in this Act provides appointed counsel for an indigent or otherwise unrepresented personal representative in an ordinary civil wrongful-death or probate proceeding.

[Subsections (1) and (2) are derived from Florida Probate Rule 5.030. Subsections (3) and (4) state the rule’s relevant operation and the absence of a supplied-counsel mechanism. Whether Rule 5.030 governs a threshold constitutional challenge presented by the personal representative, and whether the Florida Constitution requires an exception or limited accommodation in that posture, remain questions for judicial determination.]

§6. MANDATORY ATTORNEY AND EXPERT INVESTIGATION BEFORE MEDICAL-NEGLIGENCE LITIGATION

Before issuing a notice of intent to initiate medical-negligence litigation, the claimant shall complete a presuit investigation.

An “investigation” means that an attorney has:

reviewed the case against each and every potential defendant;

consulted with a qualified medical expert; and

obtained a written opinion from that expert.

The claimant shall obtain and submit a verified written medical-expert opinion corroborating reasonable grounds to believe that:

each named defendant was negligent in the claimant’s care or treatment; and

the negligence caused injury.

These requirements apply to medical-negligence wrongful-death actions.

Accordingly, the claimant must ordinarily obtain attorney participation and qualified expert assistance before filing the action, while §4 may have already eliminated substantial damages that would ordinarily contribute to financing attorney and expert participation.

[Derived from §§766.202(5) and 766.203(1)–(2), Florida Statutes.]

§7. RECORDS NECESSARY FOR PRESUIT INVESTIGATION

A health care provider shall provide copies of relevant medical records within 10 business days after a proper request, subject to the statutory exception applicable to certain hospital districts.

The provider may not refuse production either because the records are incomplete or because a medical bill remains unpaid.

Failure to provide the records, or charging an unreasonable amount for the records, shall:

constitute evidence of failure to comply with good-faith discovery requirements; and

waive the requesting party’s requirement to provide written medical corroboration.

The waiver described in subsection (3) has none of the following express effects:

waiving the requirement that an attorney review the case against every potential defendant;

supplying an attorney to perform that review;

supplying access to an expert for consultation;

restoring damages eliminated by §4;

authorizing the survivor to sue independently of the personal representative;

excusing the personal representative from the representation requirement in §5; or

suspending the ultimate repose period in §9.

[Subsections (1)–(3) are derived from §766.204, Florida Statutes. Subsection (4) identifies matters not expressly remedied by that section.]

§8. NOTICE AND WAITING PERIOD

After completing the investigation required by §6, and before filing suit, the claimant shall serve each prospective defendant with notice of intent to initiate medical-negligence litigation.

The claimant may not file suit during the statutory 90-day presuit screening period.

The claimant shall provide the medical authorization and available records and information required by law.

Statutory tolling associated with presuit notice is available only when notice is initiated within the otherwise applicable limitations and repose periods.

[Derived from §766.106, Florida Statutes.]

§9. LIMITATIONS AND REPOSE

A medical-malpractice action shall ordinarily be commenced within two years after the incident is discovered or should have been discovered through due diligence.

Regardless of discovery, the action ordinarily may not be commenced more than four years after the medical incident.

If fraud, concealment, or intentional misrepresentation prevented discovery of the injury:

the period may extend two years from actual or constructive discovery; but

the action may in no event be commenced more than seven years after the medical incident, subject to the statutory exception for certain claims brought on behalf of minors.

The statutory text contains no express exception to the seven-year boundary based upon the existence of any one or more of the following circumstances:

the health care provider possesses material records necessary to understand the incident;

the claimant disputes whether all required records or adverse-incident information has been produced;

§4 has eliminated the adult child’s noneconomic damages that would ordinarily contribute to financing counsel and expert review;

§5 requires the exclusive representative to obtain counsel;

§6 requires attorney and expert investigation before suit;

the claimant has been unable, despite documented diligence, to obtain representation;

the challenged statutory elimination of recoverable damages has caused or materially contributed to the inability to obtain required representation;

a court has delayed consideration of the constitutional challenge to permit counsel to appear; or

a constitutional challenge to one or more of these provisions remains undecided.

Nothing in the provisions assembled in this Act expressly tolls the ultimate repose boundary during a period in which the exclusive representative is unable to obtain the representation required by §5.

[Subsections (1)–(3) are derived from §95.11(5)(c), Florida Statutes. Subsections (4) and (5) state the absence of express statutory exceptions for the listed circumstances; they do not predetermine whether the Florida Constitution independently requires relief.]

§10. COMBINED OPERATION

When medical negligence causes the death of an adult who leaves neither a surviving spouse nor a statutorily defined minor child, substantial estate economic damages are factually unavailable, and the evidence establishes that §4’s elimination of adult-child noneconomic damages caused or materially contributed to making the required attorney and expert assistance economically unobtainable despite diligent efforts, the preceding provisions collectively operate as follows:

The decedent’s personal-injury claim, including the decedent’s pain and suffering, is extinguished because the injury resulted in death.

The adult child may not recover the survivor pain-and-suffering damages ordinarily substituted for the decedent’s extinguished claim.

Only the personal representative may bring the resulting action.

The personal representative must ordinarily be represented by counsel.

Before filing, an attorney must review the claim against every potential defendant and consult with and obtain an opinion from a qualified medical expert, subject to the limited records-production waiver in §7.

Under the factual circumstances specified above, the elimination of substantial recoverable damages has caused or materially contributed to making the required attorney and expert assistance economically unobtainable.

The survivor may not avoid the resulting barrier by bringing the wrongful-death claim individually.

The decedent cannot pursue the extinguished personal-injury claim.

The personal representative may be unable to obtain a willing attorney and has no established enforceable right under the provisions assembled here to require the State, the court, or a private attorney to supply the representation required by §5.

No provision assembled in this Act supplies appointed civil counsel when voluntary representation is unavailable.

The ultimate repose period continues to run without an express exception for:

the documented inability to obtain required representation;

the causal relationship between the damages exclusion and the inability to obtain representation;

a court-imposed period intended to permit counsel to appear; or

the pendency of a threshold constitutional challenge.

Upon expiration of repose, the state or opposing party may contend that:

the underlying medical-negligence claim has been extinguished;

the claimant no longer possesses an enforceable interest in the underlying claim;

the constitutional challenge has become moot or nonjusticiable; or

no live controversy remains through which the affected person may obtain constitutional review.

The resulting loss remains with the survivor, notwithstanding §1’s declared public policy that wrongful-death losses be shifted from survivors to wrongdoers.

§11. CONSTITUTIONAL QUESTION PRESENTED BY COMBINED OPERATION

The combined operation described in §10 presents the following question:

Whether the State of Florida may, consistently with Article I, sections 2, 9, and 21 of the Florida Constitution, through the combined and cumulative operation of the foregoing provisions:

extinguish the decedent’s personal-injury claim upon death;

deny the affected survivor the remedy substituted for that extinguished claim;

designate the personal representative as the exclusive claimant;

require that representative to obtain counsel;

require attorney and expert participation before suit;

provide no established enforceable right to have counsel appointed or otherwise supplied when the elimination of damages has caused or materially contributed to making private representation demonstrably unavailable despite diligent efforts;

prevent the survivor from proceeding independently;

continue running an absolute repose period during the resulting state-created exclusion from court; and

ultimately rely upon expiration of repose to prevent adjudication of whether the preceding barriers were constitutional.

This section states the constitutional question generated by the assembled provisions. It does not purport to supply the answer or represent language enacted by the Florida Legislature.

§12. POTENTIAL POINTS OF CONSTITUTIONAL RELIEF

If a court determines that one or more provisions assembled in this Act operate unconstitutionally, individually or in combination, potential relief may include:

severing or declining to apply §768.21(8), thereby permitting the existing damages specified in §768.21(3) or (4) to operate without the medical-negligence exclusion;

declining to apply Florida Probate Rule 5.030 to the limited extent necessary to permit the personal representative to present the threshold constitutional challenge;

holding the medical-malpractice repose period inapplicable during a period in which the combined operation of state law made compliance or access to court impossible;

enforcing §766.204(2)’s waiver of written medical corroboration when relevant medical records were not timely provided or a reasonable charge was not offered;

recognizing survival of the decedent’s personal-injury remedy to the extent the statutory substitute for that remedy was withdrawn;

preserving the constitutional controversy notwithstanding expiration of the underlying repose period when expiration occurred during the challenged exclusion from court; or

granting such narrower relief as permits meaningful adjudication while preserving the maximum constitutionally permissible operation of the remaining statutes and rules.

This section identifies possible forms of relief for analysis. It does not assert that every listed remedy is presently recognized or required by controlling precedent.

Related analysis and participation

Read A Remedy Given, Then Forgotten, examine the Research Library, contribute practice evidence through the attorney survey, or contact Travis Brett Creighton with authority, corrections, or contrary analysis.

Complete demonstrative preserved from the project draft and published in full September 12, 2026. The constitutional questions and possible remedies are arguments for adjudication, not holdings.