When it comes to civil litigation, there are many similarities and differences between Florida personal injury and wrongful death cases. As longtime South Florida injury attorneys, we will do our best to explain some of these – and why they matter.
Let’s start with some of the ways in which personal injury cases and wrongful death cases are analogous. To start, they are both torts, which are claims stemming from a wrongful act that resulted in legal liability. They can result from the same types of accidents, including:
- Car accidents.
- Slip, trip and fall accidents.
- Medical malpractice.
- Dangerous/defective products.
- Dangerous property/premises liability.
- Nursing home neglect and abuse.
- Workplace accidents.
Both are claims for which civil litigants can pursue damages (financial compensation for losses). Further, both have a set period of time in which they can be filed, called a statute of limitations.
But there are numerous key differences, namely who files the claim, what type of damages they can collect and how much time they have to pursue it.
Comparing Florida Personal Injury and Wrongful Death Cases
Personal injury claims are filed by the person who was injured (and/or their spouse) They are seeking accountability for an injury suffered so they file a legal action to recover financial compensation to cover their losses, which can include:
- Medical expenses.
- Loss of income or reduced income (past, present and future).
- Lowered earning capacity.
- Property damage.
- Pain and suffering.
In personal injury litigation, the plaintiff must first prove the defendant was negligent. Doing so in most cases means showing the defendant owed the plaintiff a duty of care, that duty was breached and the plaintiff was injured as a result. (There are some exceptions. For instance, in medical malpractice the question is whether the practitioner breached the applicable duty of care for their profession. Some product liability cases are decided on the basis of strict liability, and don’t require proof of negligence.) The bottom line though is that plaintiffs must prove the defendant is responsible for their damages to win.
Wrongful death cases, meanwhile, are pursued by survivors of the person who died and/or the estate of that person. Claimants in these cases allege that someone else’s negligent or wrongful act(s) led to the decedent’s death. Pursuant to Florida Statutes 768.16-768.26 (the Florida Wrongful Death Act) individuals allowed to file a wrongful death case include:
- Decedent’s spouse, minor or adult children or parents (if there’s no surviving spouse or children).
- Blood relatives or adoptive siblings who were partially or completely dependent on the decedent.
If the plaintiff dies of unrelated causes while a Florida personal injury case is pending, the decedent’s estate can sometimes continue pursuit of the claim, but may only collect damages incurred up to the point of the person’s death. If the death can be causally linked to the negligence that was the subject of the personal injury case, it’s possible a wrongful death case may be filed. It is worth noting that in a medical negligence case, it is only viable to pursue a claim when the person who was killed was married or had minor children; this is due to a particular (very unfair) limitation that exists only when a persons death was the result of medical negligence.
In these types of cases, plaintiffs can pursue damages including:
- Medical expenses paid by the decedent or on his/her behalf.
- Funeral and burial expenses.
- Lost wages, benefits or potential future earnings of decedent.
- Pain and suffering of the decedent prior to death.
- Loss of consortium (loss of support, guidance and services of a spouse or parent).
These aren’t an exhaustive list of damages that can be claimed in a wrongful death case. An experienced injury lawyer can provide more insight into the types of damages applicable in your case.
Statute of Limitations
In addition to differences in who can pursue these types of cases, there is also the matter of when they can be filed.
Per F.S. 95.11(3)(a), personal injury lawsuits need to be filed within four years from the date of injury. Conversely, wrongful death claims should be filed within two years of the decedent’s death. (Cases stemming from medical negligence – both personal injury and wrongful death – also typically have a two-year statute of limitations.)
There are a few exceptions.
The first is the discovery rule. This holds that the clock on the statute of limitations doesn’t start ticking until the plaintiff learned – or should have learned – about the injury and/or the defendant’s role in causing it. Your Fort Myers personal injury lawyer can argue the clock on the filing deadline shouldn’t have begun ticking until the injury was discovered.
The second exception is tolling. Tolling is extending the statute of limitations deadline under very specific circumstances. Some examples include:
- The defendant isn’t in the state.
- Process can’t be served because defendant is using an unknown, false name or hiding and can’t be found.
- You’re a minor when the injury occurs (in which case, claims still must be filed within seven years of the incident).
- A presuit notice or extension is filed in a medical negligence or nursing home claim.
There are a few other exceptions, but these are the most common. The bottom line is you probably have less time to pursue a wrongful death claim in Florida than a personal injury case. That said, in either case, the sooner you consult with an attorney, the better your chances of preserving evidence, formulating a workable strategy and pursuing a successful claim.
Understanding some of the key differences between Florida personal injury and wrongful death claims helps to clear common misconceptions that can keep people from pursuing a claim until it’s too late. If you think you may have grounds for either, our Southwest Florida personal injury attorneys can help.
If you are injured in Fort Myers, Port Charlotte, Sarasota, Cape Coral, Naples or Key West, contact Garvin Injury Law at 800.977.7017 for a free initial consultation.
More Blog Entries:
When Dangerous Vehicle Design Causes Florida Crash Injuries, June 17, 2021, Fort Myers Personal Injury Lawyer Blog