LEGALLY REVIEWED BY
Michael Hersh and Ian Kirtman, Trial Attorneys
October 8, 2024
Attorneys Michael Hersh and Ian Kirtman are experienced personal injury attorneys who have won their clients more than $100 million in verdicts and settlements throughout their 30 years of experience.
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Suffering harm as a result of medical malpractice is often distressing and devastating. It can, and often does, have enormous emotional and financial impacts on the victim and the victim’s family members. While focusing on recovery or grief, depending on the circumstances, should be of the utmost importance, it is also important to consider legal options, as legal recourse may be the means to righting the wrong and obtaining the financial support necessary for ongoing treatment or supporting survivors. Medical malpractice in Florida is complicated, as it is subject to a unique set of laws that implement certain procedures and requirements that are distinct to medical malpractice claims. One question that, at times, arises is who can bring the claim, and is it ever permitted that a family member bring the claim on the victim’s behalf.
At Hersh Kirtman Injury Law, our Florida personal injury law firm has several years of experience helping clients who have been injured due to medical malpractice. Our Florida medical malpractice lawyers provide trusted legal assistance to clients in their time of need. Our dedicated Florida attorneys have a track record of success and will protect and advocate for you throughout each phase of the claims process. From helping you determine who is eligible to pursue your claim to helping you recover the fair compensation you are owed, we will guide you through each step.
Are Family Members Eligible to Pursue a Medical Malpractice Claim on Your Behalf?
When a medical professional like a doctor or nurse breaches the duty of care owed to a patient, they may liable for medical malpractice. To hold them responsible requires pursuing a claim for medical malpractice under Florida’s Medical Malpractice Act.
Typically, the appropriate person to bring the claim is the patient who was harmed. As long as the patient has the mental capacity to bring a claim, he or she is the one who is to pursue the claim and file suit, if necessary. In certain circumstances, though, a family member or other representative may, or must, bring the claim. This occurs in the following scenarios:
- Parents: Parents may pursue a claim for medical malpractice on behalf of their minor children.
- Legal Guardians: Legal guardians may pursue claims for medical malpractice on behalf of the ward on whose behalf they act. Legal guardians may be appointed in various circumstances, including when an adult patient is harmed by medical malpractice so severely that the patient has no mental capacity to bring the claim or make decisions on his or her own. Also, minors who are injured by medical malpractice are not permitted to bring claims on their own; rather, their claims are pursued by legal guardians. As mentioned above, the legal guardians are typically the natural or adoptive parents. However, in some instances, a non-parental guardian is appointed.
- Spouses: While a spouse does not bring the claim on the injured spouse’s behalf, the spouse of the patient victim may pursue his or her individual claim arising from the patient victim’s injury. This is permitted because Florida law allows husbands and wives to bring claims for loss of consortium when the other spouse has been injured, impacting the relationship. Loss of consortium encompasses the loss of companionship, romantic relationships, comfort, protection, love, and affection, among other things.
- Children: Children also do not bring claims on behalf of an injured parent; however, children may also have a loss of consortium claim that may be asserted on their behalf. This is permitted under Section 768.0415, Florida Statutes, which provides that an unmarried dependent child may bring a consortium claim if a parent suffers a “significant permanent injury” resulting in “permanent total disability.” The consortium claim includes damages for permanent loss of services, comfort, companionship, and society.
- Death: If medical malpractice results in the patient’s death, then the claim must be pursued as a wrongful death claim under Florida law. In that event, the personal representative of the deceased patient’s estate brings the claim, on behalf of the estate and all survivors, which may include the spouse or minor children, or both. Florida law treats medical malpractice differently than other forms of negligence when it comes to determining which survivors are permitted to recover non-economic harm such as pain and suffering. Sadly, under Florida law, adult children of a deceased parent, and parents of an adult child who died, are not entitled to non-economic harm in medical malpractice claims, whereas they would be entitled to such damages if the negligence was anything but medical malpractice. This is often referred to as the ‘Free Kill Law.”
To better understand who the appropriate claimant may be, contact a trusted medical malpractice lawyer today.
What Is the Statute of Limitations for Filing a Medical Malpractice Claim in Florida?
Whether you or a family member is filing a medical malpractice claim for medical malpractice, it is imperative that the claim is filed within the state’s statute of limitations. The statute of limitations is a legal term used to describe the amount of time a party has to take legal action. In Florida, victims of medical malpractice have two years from the date the incident occurred to pursue their claim.
While two years may seem like a lengthy amount of time, the medical malpractice claims process can be time consuming. For that reason, it is crucial you contact an experienced medical malpractice lawyer as soon as possible to begin the process of pursuing your case and helping you get the justice you deserve.
How Hersh Kirtman Injury Law Can Help with Your Medical Malpractice Claim
If you or a family member needs to pursue a medical malpractice claim in Florida, Hersh Kirtman Injury Law may be able to assist. We understand how overwhelming the legal process can be, especially when you’re focused on recovery. Our firm has extensive experience in guiding clients through each step of the process, ensuring they feel supported, informed, and empowered. We approach every case with care, creativity, and a deep commitment to achieving justice for our clients.
We know that understanding who is eligible to pursue a claim and meeting strict deadlines can be challenging. At Hersh Kirtman Injury Law, we offer clear guidance and personalized attention throughout this complex journey. Let us help you navigate the claims process with confidence. Call us today at (561) 208-3700 or visit our contact form to get started.
