In Florida, a child has rights to compensation when injured as a result of the negligence or fault of another person, business entity, school, or government. A parent may also be entitled to compensation / damages when a child is injured in Florida. Florida law is spelled out on this issue in the case of United States v. Dempsy, 635 So.2d 961 (Fla. 1994). One of the central issues in the case was whether a parent under Florida law could recover damages related to the loss of the child’s society and affection when the child suffered a serious personal injury but did not die as a result of the injuries.
The case law and legal precedents concerning child injuries and recoverable damages can be quite complex and confusing. Because of this, it is helpful to have the advice, consultation, and representation from the Florida Child Injury Attorney on this matters. You also can read more about child injuries and rights of recovery as well as burdens of proof in the book – The ABCs of Child Injury – Legal Rights of the Injured Child – What Every Parent Should Know. You can receive this book for free at – The ABCs of Child Injury.
In United States v. Dempsey, the parents were awarded monetary damages / compensation for injuries to their child that resulted in lifelong, severe mental retardation. The Supreme Court of Florida noted that a parent with a child (who was wrongfully and negligently injured due to the acts of others) had a legal right in the State of Florida to recover for the permanent loss of filial consortium resulting from the child’s permanent injury. What is Filial Consortium? Filial Consortium is the A child’s society, affection, and companionship given to a parent. These type of damages in a Florida Child Injury Case include the loss of companionship, society, love, affection and solace.
In the Dempsey case, the mother gave birth to a child at the Eglin Air Force Base in Florida. The child had breathing difficulties after birth. The tube meant to deliver oxygen to the baby was negligently inserted. By the time the medical mistake was discovered, the baby had been deprived of oxygen for a period sufficient to cause severe mental retardation. A lawsuit was later filed against the government and an award ultimately entered in favor of the parents. The damages awarded in this case included damages for the loss of society and affection of the child. The government appealed this part of the award.
The Supreme Court of Florida supported the award to the parents for loss of society and affection. In its ruling, the Supreme Court of Florida noted that the roots or history related to these damages went back to 1926 under the Wilkie v. Roberts decision. The Wilkie decision may have limited the award to the following:
(1) The loss of the child’s services and earnings, present and prospective, to the end of minority; and
(2) medical expenses in effecting or attempting to effect a cure.
Since the Wilkie decision seemed to limit the amount of recovery, further case law was developed over time to the present day so that parents can seek compensation for loss of filial consortium. See also Yordon v. Savage, 279 So.2d 844 (Fla. 1973).
It appears that the loss of a parent of filial consortium may be limited to cases where there is a significant or serious personal injury and the facts should that the nature and quality of the parents relationship with the child are significantly impacted by the injuries or damages to the child. The Dempsey case seems to be a prime example of these kind of damages since the child suffered injuries leading to mental retardation that will have a lifetime effect on both the child herself and the parents derivatively from the child’s injuries.