The Loss of a Child: No Med Mal claims if child is over 25
I got a call this week from a mother who was so grief stricken about the death of her only son that she could not bear to discuss it for more than a year. Turns out her son died of a drug overdose in July 2009 and was 32 years old, single and without kids. She claimed his doctor, a pain specialist in Orlando, was an enabler, and knew he had a problem handling drugs, but continued to give him prescriptions for oxycontin. When he died she found lots of prescription bottles around his apartment.
She asked me: "Can you go after his doctor?" No, I answered. You see under Florida law, a doctor cannot be sued for medical malpractice when the decedent (her son) was over the age of 25 (he was 32) and the decedent had no surviving spouse (he was single) and had no children.
Everyone knows that a parents love for a child never ends, even when they grow up and establish their own families. In today's world lots of kids are coming back home after college and moving in again with Mom and Dad. Makes no difference. If the child is over 25 there is no grief claim against the doctor for his/her medical negligence. Strangely, if the doctor ran a red light and killed her son, she would have a claim for wrongful death due to the car accident.
This law has been on the books for over 10 years and is a perfect example of a querky law favoring a highly paid special group of people who have convinced the Florida legislature they need protection from frivolous lawsuits when parents sue doctors who kill their kids. Bottom line, I had to tell her there was no basis for a claim.
The story of Michael Jackson's death is very reminiscent of this local small time tragedy. Politics is a dirty business, and this law is a good example of special interest politics at its worst.
