The Loss of a Child: No Med Mal claims if child is over 25

Posted on July 28, 2010 by Phil Chanfrau

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.

 

 

 

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Teaching Kids to Drink and Drive? Very Stupid

Posted on September 11, 2009 by Phil Chanfrau

Every so often I have a client who asks me about Open House parties where teenagers are provided with adult supervision and free booze.  Unfortunately, this happens in just about every community once every couple of years and the results are not pretty.

Today's front page of the St. Augustine Record contains a sad story about a Party Mom who provided booze at her home at some teen age parties earlier this year.   She is facing criminal charges for manslaughter because two of them were killed after they left her house while they were driving.  I know there is usually two sides to every story, but this was an incredibly stupid act and was clearly responsible for the death of two teenagers.

In Florida it is illegal for anyone (except at a religious function) to provide underage kids with booze.  It is no defense to say that the kids shouldn't have drank the booze.  That is what her criminal defense attorney is claiming in the manslaughter case. That may also be what the insurance company lawyer tries to argue if she gets sued for wrongful death of the two kids. The Florida Alcohol Defense statute deprives an injured plaintiff from his right to recover damages if he was more than 50% at fault. Does that also apply to kids?

A homeowner usually has to carry insurance on their house to get a mortgage loan.  The homeowner's insurance would provide coverage (insurance) for this type of negligence by the Party Mom.

There is an unanswered legal issue which is going to come up in the death case: whether the drinking of the minors can block a suit by their parents for wrongful death? The "Open house party"statute is designed to protect minors from harm that could result from consumption of alcohol or drugs by those who are too immature to appreciate potential consequences. Newsome v. Haffner, 710 So.2d 184, (Fla. 1st DCA 1998) dealt with an open house party at which a minor was killed with a firearm. His parents were allowed to make a claim for wrongful death despite his alleged negligence.

The bottom line is whether kids are subject to the Alcohol Defense statute.   My Prediction: NO!  Florida's Open House Party statute is designed to protect a particular class of people: minors.  It is intended to protect them from the evils of alcohol.  There is likely going to be a need for a Court to decide which law trumps: The Alcohol Defense law, which penalizes everyone from drinking, or the Open House Statute, which protects underage minors. 

I think the courts will find that the Open House Statute prevails.  If the Florida legislature wanted to the Alcohol Defense statute to apply to minors too, it could easily have written the Act differently to make that clear.

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