Every year, up to 120,000 people lose their lives due to medical malpractice across the country. In Florida, medical malpractice occurs when a health-care provider breaches a professional duty of care. If no reasonably competent physician with the same level of training as your health-care provider would have made the mistakes your doctor did, you may have a claim for malpractice. However, only 2.9% of victims of medical malpractice choose to file a claim in the hope of receiving financial compensation for their unjust suffering. Unfortunately, according to Florida law, when it comes to medical negligence, damages may not be recovered by a decedent’s adult children or the parents of an adult child in wrongful death cases.
Mary Jo Cain Reis tearfully recalled the story of her father’s medical care and eventual death. After experiencing a stroke, Thomas Cain spent nine months in several hospitals and a nursing home, developing painful bed sores and contracting MRSA and pneumonia, which eventually claimed his life on August 19, 2020. Reis wanted to file a claim for medical malpractice, but attorneys told her Florida law only allows that for spouses and minor children. She got a quick lesson in the Florida “Free Kill” law. Reis wants the public to contact lawmakers and call attention to this law, so she is putting up billboards around the state. The first one is in Orlando. She knows that repealing the “Free Kill” law will not help her, but in her father’s memory, it might help others in the same situation.
Nevertheless, there have been attempts to abolish the “Free Kill” law in Florida. On October 19, 2021, Sen. Ana Maria Rodriguez introduced the bill known as SB 560: Recovery for Wrongful Death. Sadly, on March 14, 2022, it died in Judiciary. If it had become law, the bill would have deleted the prohibition on adult children of certain decedents recovering specified damages by filing a lawsuit. In 1990, lawmakers prevented anyone over the age of 25 from suing doctors for pain and loss judgments in malpractice suits over the death of a parent if they were unmarried or divorced. The law allowed claims by surviving spouses or minor children. This controversial law is described as Florida’s “Free Kill” law because it eliminated a major consequence — huge cash payouts to surviving family members — after botched surgeries or medical treatments.
A Lake County family believes a mistake that was made during what should have been a routine medical procedure for their adult, special-needs son led to his death, but because he had no spouse or children, they have no recourse under Florida law. Medical records show the man was admitted to the hospital on March 20, 2023, for breakthrough seizures, a fever, and a malfunctioning of his feeding tube. The notes show the plan was to replace the tube the following day, but complications kept him there longer. Six days in, the records show his stepmother raised concerns about staff feeding her stepson through the wrong port of his tube. This might have led to vomiting and, eventually, aspiration pneumonia. Clinton had to be intubated and ultimately moved to the intensive care unit, and he never returned home.
Similarly, a bill was proposed to end this problem as well. On September 20, 2021, Sen. Ana Maria Rodriguez introduced the bill known as SB 262: Damages Recoverable by Parents of an Adult Child in Medical Negligence Actions. If it had been signed into law, it would have deleted the provision prohibiting parents of an adult child from recovering damages for mental pain and suffering in a medical negligence lawsuit. Nevertheless, this bill also died in the Judiciary on March 14, 2022. This Florida law prevented parents of unmarried or childless adult children from suing for those judgments. During those times, lawmakers claimed they were trying to hold down the rates of medical malpractice insurance and discourage physicians from moving their practices to other states with friendlier business climates.
Because these two attempts to change Florida’s “Free Kill” law failed, the situation might not change in the near future. This is very alarming, as many people are entitled to recover the damages they deserve for the death of their adult children or parent.
Sean M. Cleary is a lawyer who provides assistance to victims of medical malpractice. His practice is headquartered in Miami.
