Supreme Court of Florida

In a wrongful death suit against a doctor, claiming that the decedent was negligently discharged by the doctor and by the hospital without a proper discharge assessment, even though the decedent's last assessment by a physician indicated that he was possibly suicidal, the Fourth District Court of Appeal's reversal of a trial court's grant of defendants' motion for partial summary judgment on the ground that a survivor claim could not properly be brought on behalf of the decedent's minor son because the son's mother was married to someone other than the decedent when the son was conceived and born, and the mother's husband's paternal rights had not been divested and the husband was not a party to the estate's suit, is affirmed and remanded where: 1) in light of the legislative intent underlying the Florida Wrongful Death Act - that losses are to be shifted from the survivors to the wrongdoer and that the act is to be liberally construed to effect that intent - and in light of the text of section 768.18(1), the biological child of a man not married to the mother may claim survivor damages in a wrongful death action so long as it is established that the decedent is the biological parent that that he acknowledged responsibility for support; 2) whether a child qualifies as a "survivor" under section 768.18(1) may be determined in a wrongful death action, and the statute does not require a separate action brought under chapter 742 to formally establish paternity; and 3) a formal adjudication of a legal relationship between the minor, as survivor, and the decedent, as the biological father, made before his death is not a prerequisite for a cause of action under chapter 768 for a child born out of wedlock of the father.

Appellate Information

• Decided 11/24/2010
• Published 11/24/2010

Judges

• LABARGA

Court

• Supreme Court of Florida

Counsel