Pursuing a Wrongful Death Action or Other Tort After Death? You’ll Need to Open an Estate in the State of Florida first!

In Florida just because you are deceased does not mean you lose all rights to bring and defend law suits. After death a person’s estate takes over their litigation but the subject matter of the overlying suits are largely the same. This week in West Palm Beach a Court dealt with a case brought by a decedent against a pharmacy for negligently filling prescriptions. This case is an example of how Florida’s wrongful death actions require an estate in probate before commencing.

In Olecka v. Daytona Discount Pharmacy:

• In May 2009, Steven Porter, now deceased, began treatment with Dr. Owen R. Hunt, who diagnosed him with “stress syndrome” and prescribed strong medication.
• It was alleged that over the next two years, Dr. Hunt repeatedly prescribed these drugs before Mr. Porter should have depleted the preceding prescriptions. Oleckna alleged that Pharmacy filled at least thirty of these prescriptions, all written by Dr. Hunt, without question, even though the prescriptions were issued too closely in time and days before Mr. Porter should have exhausted the preceding prescription.
• In March 2011, Mr. Porter died due to combined drug intoxication of Alprazolam and Hydrocodone. 

Pior to bringing this case the Personal Representative for the Plaintiff had to open an estate in Probate. This is done in a Florida Probate Court and may already have been completed if the person had a will or assets that formed an estate.

The specific paramets for bring a suit of this nature can be found in Florida Statute 768.21 also known as “Florida Wrongful Death Statute.” One question I get a lot, is why does this have to be done? Often a decedent’s estate may be nominal but for the purpose of the lawsuit – in other words there were no assets! Well, the answer lies within the statute itself.

Looking at the statute’s preliminary clause it becomes clear an estate is necessary to pursue the action. “768.21 Damages.–All potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages shall be awarded…”

So, in other words, the decedent cannot litigate from beyond the grave, their estate must have a personal representative to have the capacity to make the decisions for the case. This also is important if the action succeeds because upon judgment, the damages will be placed into the estate and division so administered.