Under The Florida Wrongful Death Act, when determining the recovery of damages for the survivors, the survivors must be identified in the complaint and their relationships to the decedent must be alleged. In a wrongful death action, one type of damages that a survivor may recover depending on their relationship to the decedent is for mental pain and suffering. The surviving spouse and minor child may recover damages for mental pain and suffering from the date of the decedent’s injury. Additionally, adult children may also be entitled to mental pain and suffering damages from the date of the injury, but only if there is no surviving spouse. For the purpose of determining whether there is a surviving spouse, when both spouses die within 30 days of each other as a result of the same wrongful act or accident, each spouse is considered to have predeceased the other. This provision allows adult children to recover damages for mental pain and suffering, lost parental companionship, instruction, and guidance if both parents die as a result of the same wrongful act. However, in a wrongful death action arising from a medical malpractice claim, the surviving adult children over the age of 25 years cannot recover for mental pain and suffering, lost parental companionship, instruction and guidance.
The surviving parents of a deceased minor child under the age of 25 years of age may recover individually for mental pain and suffering from the date of the decedent’s injury. All children under the age of 25 are considered minor children regardless of their marital status, for the purpose of determining if a parent is a “surviving parent.” Additionally, the parents of an adult child may also recover for mental pain and suffering, but only if there are no other statutory survivors, such as a spouse, children, or another blood relative partly or wholly dependent on the decedent for support. However, in a wrongful death action arising from a medical malpractice claim, the surviving parents of an adult child decedent cannot recover for mental pain and suffering.

Only the surviving spouse, children, and parents of a decedent are entitled to recover damages for mental pain and suffering, other relatives cannot recover mental pain and suffering damages. Additionally, the wrongful death action generally eliminates the decedent’s claim for mental pain and suffering, however in an action for violation of a nursing home resident’s rights, if the resident died as a result of a violation of their rights, the decedent’s damages may include an award for pain and suffering pursuant to Florida Statute §400.023(1).

To ensure that you recover all the damages you deserve, hire an experienced Florida attorney. Call Sharmin & Sharmin P.A. 1-800-74-TRIAL.