Legislative activism in medical malpractice - survivors grieving

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Jack Hill

Justice for All? Not Always.

» Written by // November 3, 2009 // ,


In his June 11, 1963 civil rights address, President John F. Kennedy confronted head-on the unfair treatment of African Americans in our society under our then-existing system of laws. President Kennedy, in imploring Congress to pass fundamental civil rights legislation, stated:

“…the old code of equity law under which we live commands for every wrong a remedy, but in too many communities, in too many parts of the country, wrongs are inflicted on Negro citizens and there are no remedies at law.”

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Unfortunately, President Kennedy’s reference to our system of justice having the ability to remedy every wrong states only an ideal, but, sadly, not reality. Sometimes the difference between principle and truth is the result of legislative inaction or by legislative activism. Perhaps the most glaring example of legislative activism stripping away the “guaranteed” rights of citizens to have both their day in court and a remedy for every wrong can be seen in the medical negligence arena.

Let us examine the following two hypothetical scenarios.

First, a fifty six year old unmarried man is killed while traveling home one night. He is stopped at a red light when his car is smashed into by a dump truck, driven by an inattentive driver who was hurrying to get through his assigned route on-time. The deceased man leaves behind three surviving children who are each over the age of twenty five. Each of his three children are emotionally devastated by the sudden, unexpected, and totally avoidable death of their father.

Second, take the same man, but instead of being killed by an inattentive truck driver, he is the victim of medical malpractice. He is hospitalized and a doctor fails to read the clearly documented chart showing that her patient suffers from a severe allergy to penicillin. The physician administers the antibiotic anyway. Her patient dies on the operating room table from severe anaphylactic shock in what is a clearly avoidable death caused by medical negligence.

The surviving children of the victim in our first hypothetical would each have a claim as a legal survivor of their deceased father for their lost parental companionship, instruction, and guidance and for their mental pain and suffering caused by the loss of their father.

In the first scenario, they would have an opportunity to explain to a jury of their peers the tremendous sorrow, pain, and loss they feel as a result of their father’s tragic and untimely death. The jury would then be able to award each surviving adult child an amount of money that was fair and just in light of the evidence. In essence and at least to the extent that our system of justice is able to do, there would be a remedy for this horrible wrong.

The surviving adult children in our second hypothetical, however, are going to be victimized first, by the medical malpractice which claimed their father’s life, and second, by the fact that Florida’s tort system has created special protections for healthcare providers when their negligence results in the preventable deaths of their patients. Specifically, Florida Statute 768.21(8) prevents the adult children of a parent who dies as a result of medical malpractice from bringing a claim for their pain and suffering. In essence, the courthouse doors are closed to them. There is a wrong, but not a remedy. Is the pain felt by the surviving adult children somehow less profound, less real, less debilitating in the second example than in the first? Of course not.

Legislative activism in the medical malpractice arena has left a gaping black hole where medical errors resulting in death can leave grieving survivors without any remedy whatsoever to address the tremendous pain and suffering they experience as a consequence of a parent’s untimely and avoidable death. In essence, Florida Statute 768.21(8) provides healthcare professionals with a virtual “get-out-of-jail-free-card” when their malpractice kills unmarried adults with no children under the age of 25.

There is a wrong, but justice has been taken away.


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