Monday, May 21, 2007

Law prevents older children from suing over parents' deaths


Palm Beach Post Staff Writer

Sunday, May 20, 2007

Julie McPherson figured it would be easy to punish those she believes caused her mother's death.

Hire a lawyer. Sue. Little did she know that her age (42) would scare off attorneys who initially indicated an interest in taking her case.

According to Florida law, only spouses or children under 25 can file a lawsuit seeking damages for a wrongful death caused by medical malpractice.

Because McPherson blames a home health care agency and a nurse for her mother's death, she and her siblings, ages 52 and 54, were too old to file a lawsuit challenging the circumstances surrounding the 2005 death of their 74-year-old mother, Camilla Combs.

"I couldn't believe I was being turned down," the Wellington woman said. "Someone killed my mother and you're turning us down? I couldn't believe this law existed. It made me sick."

Trial attorneys throughout the state share McPherson's view. Since it was enacted in 1990, their state organization, the Florida Justice Association, has sought to fight it in court and in Tallahassee to no avail.

It was upheld by the Florida Supreme Court in 2000 when five justices ruled it passed constitutional muster. The restriction, they wrote, "bears a rational relationship to the legitimate state interests of limiting increases in medical insurance costs."

Justice Barbara Pariente wrote a stinging dissent, saying the restriction was unjustified. She quoted a lower court judge who wrote that the restriction placed on adult children was akin to limiting the rights of "survivors with blue eyes or - heaven forfend! ñ of less than a certain height."

Powerless to persuade the court majority, Pariente asked the legislature to reconsider the law and give adult children who lose a parent to medical malpractice the same right to file lawsuits as those who lose loved ones in other ways, such as being killed by a drunk driver.

The legislature ignored her request.

And few expect that will change.

"It's not a groundswell issue," said Phil Burlington, a local trial attorney. "The Florida Medical Association is still strong. The insurance companies are still strong."

He added, sarcastically, "The only ones who care about it are the greedy trial attorneys."

Not surprisingly, attorneys have figured out a way to get around the restriction. But it's not an easy path.

To pursue a medical malpractice claim on behalf of adult children, they have to first prove the conduct was so outrageous that it goes beyond all bounds of decency.

"It's a high bar," Burlington acknowledged.

Greg Rice, the Lake Worth celebrity dwarf, filed a lawsuit last year against Good Samaritan Medical Center over the 2005 death of his 53-year-old twin, who died of a heart attack while being prepped for surgery. While a judge initially ruled that the conduct Rice alleged was outrageous, the lawsuit was withdrawn last month after Good Samaritan challenged the veracity of Rice's claims.

Attorney Ted Babbitt used the outrageous conduct argument successfully in a lawsuit he filed in 2003 on behalf of prominent West Palm Beach attorney F. Malcolm Cunningham and his siblings after their mother died during routine eye surgery. The lawsuit was ultimately settled out of court for an undisclosed amount.

McPherson and her siblings finally found an attorney willing to take the same tack against health care agencies High Tech Home Health and Private Care and nurse Lorri Ann DePasqua.

Tom Larkin, who owned the health care agencies that lost their licenses, said he believes the suit will be thrown out.

Attorney Craig Goldenfarb is equally convinced he has a good case

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