Jennifer Rosen of Plantation says a doctor gave her active, 76-year old father a toxic dosage of a medication last summer, which led to his death. Infuriated, she wants to sue for medical negligence — but she discovered she can’t.
Rosen, as an adult child in Florida, is prohibited from suing a healthcare provider even if she believes medical negligence caused the death of a parent.
“Are you aware of Florida’s dirty little secret? It’s a law that impacts anyone who steps foot into the state of Florida. It is Florida’s ‘Free Kill’ law. My daughter is a recent victim,” Cindy Jenkins wrote on social media after Taylor, 25, died in March at a hospital from what she describes as “horrific and unfathomable negligence.”
Florida is the only state in the U.S. with this type of legal restriction in place. The state statute, dubbed “free kill,” passed in the 1990s and says when it comes to medical negligence, only a decedent’s surviving spouse or a minor child under 25 can pursue pain-and-suffering damages. If you are single, over 25, and don’t have young children, there would be almost no legal consequences if a doctor or health provider makes a deadly medical mistake. Florida families fighting the law believe if the millions of Floridians and visitors potentially affected by “free kill” knew about its existence, they would want it gone.
Rosen said she learned of the law only when she tried to take legal action.
“My father’s death certificate says he died from pulmonary fibrosis caused by Amiodarone toxicity,” Rosen said. “That is medical negligence. But when I contacted an attorney in Palm Beach, he said everything sounds legit, but your father was a widower and all his children are over 25. The law protects his doctor, and no attorney will take this case.”
Families are organizing
Throughout the state, distraught families who share Rosen’s and Jenkin’s plight are rallying, sending letters to and meeting with their state legislators, detailing their personal stories on social media and seeking media attention. One daughter, Mary Jo Cain Reis, has even taken out a billboard on a busy Orlando road to educate the public. She says she learned about the law only after her father, Thomas Cain, 88, had a stroke and then spent nine months in several hospitals and a nursing home, developing painful bed sores and contracting MRSA (a bacterial infection) and pneumonia, which eventually claimed his life in August 2020.
Cain Reis wanted to sue for medical negligence, but attorneys told her about the Florida free kill law.
“The scariest part of this whole issue is that 90% of Floridians have no clue that this law even exists,” she said.
In Tallahassee, the fight is on, with legislators who view the free kill law as “draconian” trying to figure out how to cut through the tremendous opposition to repealing it from powerful lobbyists for insurance companies, medical organizations and business groups. The law, when approved 33 years ago, had the purported goal of lowering medical malpractice premiums and continues to be cited as the reason to keep it.
Behind the scenes in Tallahassee
Meanwhile, the grassroots efforts of distraught families found an audience with Republican Rep. Spencer Roach of Fort Myers.
Roach has filed a bill for the legislative session that starts in January 2024. This will be his fourth attempt at repealing the free kill law. His proposed bills have passed twice in the House of Representatives but failed to get heard in the Senate.
During a previous session, the Florida Chamber of Commerce sent an email to legislators, including Roach, urging them not to vote to repeal the law, saying they will count it against them in the legislative report card sent to their members.
The chamber noted that the law is in place “due to the overwhelming public necessity to address high medical malpractice rates that were driving doctors out of the state.” Yet even with this law, Florida’s malpractice insurance costs are among the highest in the country.
Roach’s proposed bill, HB 77, this time is carefully worded in an effort to gain more support, he says. The bill would remove the provision in the state statute that prohibits parents of adult child from recovering certain damages in medical negligence suits, but it does not change the portion that pertains to adult children who want to sue on behalf of deceased older parents. Roach says that with the opposition strong and organized, he wants to use a different tactic.
“The way these legislative changes work in practice is incremental approaches and small bites of the apple,” Roach said.
“I’m trying to get the ball moving any way that I can and get one victory off on this issue,” he said. “And then we can look at expanding it at some point in the future.”
Republican Sen. John Martin of Fort Myers said he is considering co-sponsoring Roach’s bill in the Florida Senate.
“I am concerned with any law that discriminates against a large class of people,” Martin said. “I am aware of insurance costs for providers, but you need to treat people fairly, and the way the current legislation exists, we are not treating all people fairly.”
Meanwhile, Judiciary Committee Chair Sen. Clay Yarborough of Jacksonville, also a Republican, has proposed a bill that goes further. His bill, SB 248, would allow families of victims who would otherwise fall into free kill to pursue a malpractice suit if the Agency for Healthcare Administration or the Florida Department of Health found probable cause that a doctor committed malpractice.
If AHCA or the health department don’t resolve the complaint within nine months, probable cause is assumed and the lawsuit can move forward.
Families of free kill victims say AHCA and FDOH do not have the resources or staff to adequately investigate these claims, while the clock on the two-years-from-date-of-death statute of limitation would be running.
Will compromise work?
Melody Page, cofounder of the grassroots Florida Medical Rights Association, has pushed to overturn the free kill law since her dad’s death in 2016. She does not think anything short of a full repeal would be effective.
“(Yarborough’s SB 248) is not addressing it fully and certainly not in a way that is helpful, because they’re adding obstacles,” Page said.
Jordan Dulcie, a South Florida medical malpractice attorney, says a court should decide whether a family is owed compensation for medical malpractice, not a government agency as proposed in Yarborough’s bill. “It’s probably very unconstitutional to have an administrative body determine whether or not you’re entitled to pain-and-suffering damages,” Dulcie said.
Dulcie does not agree that change in the law can occur in stages.
“If any law passes on this issue, or touches this issue, it will never be heard again for another 50 years in the Legislature, because they’re going say ‘You know what, we already had legislation that passed on this issue.’ So you just have the same law in different clothing that will apply for the next generation of Floridians,” Dulcie said.
Sabrina Davis of Gainesville lost her father, Keith Davis, three years ago to medical malpractice when a doctor failed to diagnose a deadly blood clot. The Florida Department of Health ruled in her favor, gave the doctor a small fine, required him to take classes, and added a letter of concern to his file. He continues to practice. She doesn’t feel like justice was served, but is unable to pursue accountability through the courts because she’s an adult and her dad had no surviving spouse.
“Right now, there’s no reason for doctors to do better when they’ve messed up in cases of someone being single, divorced or widowed, and having no minor child.” Davis said. “The Legislature’s goal 33 years ago has failed to do what it intended to do, and instead, it has created a cascade of unintended consequences for people like myself.”
In honor of Davis’ father, Democrat Rep. Johanna Lopez and Republican Rep. Mike Beltran have filed HB 129, known as the Keith Davis Family Protection Act. It would outright repeal the law.
Davis would like to see it approved, but she believes that even a bill with concessions, like Yarborough’s, is better than no bill at all.
A co-sponsor of Davis Family Protection Act, Democratic Rep. Anna Eskamani, said she trusts Lopez’s judgment and would support concessions to the bill if that helps it pass in the Senate.
“Good policy takes time, and incremental is also really impactful if it’s going to ensure better health outcomes and honor those that we’ve lost in these situations,” Eskamani said.
Yarborough did not respond to a request for comment for this article. However, he told Florida Coast News his bill may be the only way to get change.
“Today you don’t have any access to the courts. And previously, when we’ve taken up these kinds of bills, they’ve passed the House but not the Senate or there’s been interest on one side but not the other,” Yarborough said. “So, this may not be completely where some out there may want it to be, but it’s still opening up a path that doesn’t exist today under current law.”
Melody Sandberg-Mcdonald who maintains a Facebook page for the Florida Medical Rights Association says at least one person a week calls to tell her about a loss and how the free kill bill affects them.
“If even 10% are serious negligence that could have been prevented, we are doing a great disserve to our community,” she says.”Instead of improving patient safety we perpetuate negligence.”
Sun Sentinel health reporter Cindy Goodman can be reached at cgoodman@sunsentinel.com. Orlando Sentinel health reporter Caroline Catherman can be reached at ccatherman@orlandosentinel.com.
