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Little-known Florida statute prevents malpractice lawsuits in certain cases

Posted at 8:25 PM, Mar 04, 2019

NAPLES, Fla. — The emotions are raw. Kevin Speck of Naples recently lost the love of his life; a woman he lived with for more than 20 years. But what happened next came as a surprise to him and many others.

It starts with the death of Speck's partner, Jackie Tyrrell. She entered a Southwest Florida hospital in November of 2017 to fix a circulatory problem. Within 48 hours she was dead.

The circumstances surrounding Jackie's death led Kevin, along with her adult children from a previous relationship who are in the health care industry, to suspect medical malpractice.

But when they looked into the possibility of suing the doctor and hospital, they discovered something startling: a Florida state statute signed and passed into law almost 30 years ago and one most people don't even know exists.

Kevin points out that following the operation the doctor told him he nicked Jackie's spleen, but was able to patch it up.

The full set of notes covering the operation, all 1,040 pages, seem to back up that claim; first that the spleen was damaged, and second that nurses – unaware of what was happening - may have made things worse by giving Jackie more blood.

And that’s where that Florida state statute comes in, and why every adult with an unmarried, widowed or divorced parent living in Florida should be concerned.

Attorney Mike Fink of Fort Myers puts it succinctly. "Today, in Florida, if one is killed as a result of medical malpractice, and he or she does not have a surviving spouse or leave a surviving minor child, then no one can recover any mental distress or pain and suffering damages."

That means no large medical malpractice payouts by insurance companies representing the doctor or hospital for the loss of a loved one. Not unless the victim is married or has children under the age of 26.

FULL DETAILS: Statute 768.21 -- Damages for wrongful death

As for the statute, it was added to the laws governing malpractice as a way to encourage doctors to come to Florida. An added layer of legal protection with the promise of lower malpractice insurance bills.

That’s something attorney Michael Fink says never happened. The statute has been challenged and modified over the years, but that provision has never changed.

And with more and more older adults together and not married -- an estimated 4 million nationwide – it makes a big difference. Especially in Florida, where common law marriage is not recognized, and a marriage license is your only protection.