Legal Question in Legal Malpractice in Florida

The statute of limitations for wrongful death is 2 years from the date of death. The parents may be able to bring a suit on behalf of the children. They have a right to a claim even if the father does not want to pursue a claim.

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Mr. Marino is wrong to suggest that the parents of a medical malpractice victim would always have the right to bring a claim.

First, under the Florida Wrongful Death Act only the personal representative of the estate can bring a claim. A parent cannot bring a claim. The personal representative brings a claim on behhalf of the estate (for loss of net accumulations and medical bills) and for "survivors" as defined by the act. If a person is married, the survivors (those who can recover) are the spouse and the children under 25 years of age.

Section 768.21(4), Florida Statutes, allows parents to recover for their child's death only if the child is under 25 years of age. Thus, in your circumstance, the only way that the parents who are not dependent on their child could recover is if the child was under 25 years of age. If she was 25 or older, then the parents cannot recover.

The parents could bring a claim (but not recover) if they opened an estate and became the personal representative of the estate.