Christine Jordan Sexton
A House panel Thursday moved a bill that would allow, for the first time in 30 years, the parents of single, childless adult children to recover noneconomic damages in medical malpractice claims.
Sponsored by Rep. Spencer Roach, HB 6011 cleared the House Civil Justice & Property Rights Subcommittee by a 13-5 vote and over the objections of Florida’s medical community and insurance industry. House documents show 103 lobbyists have registered on the bill.
Douglas R. Murphy Jr., president of the Florida Medical Association, said the bill would make wrongful death cases more attractive for trial lawyers but would not hold physicians accountable for negligence.
“Lawsuits do not hold physicians accountable. Period. The Board of Medicine does,” Murphy said. “While I feel very strongly these cases are very heart-wrenching, this bill would do nothing to improve the physicians’ accountability in this state.”
The legislation would attempt to change a complex and complicated portion of Florida law.
When a person’s death is caused by a wrongful act, negligence or breach of contract of another, Florida law allows claims to be brought by the family members or by the estate. The decedent’s estate can sue for lost wages, benefits and other earnings. Those include the potential for future earnings, medical and funeral expenses that were paid by the estate, and the value the estate could have acquired had the deceased person lived.
Family members also are allowed to sue for support and services the deceased provided and for loss of companionship and guidance.
Damages for mental and emotional suffering can also be sought under state law by a surviving spouse; a child 25 years old or younger; a child 25 or older if there is no surviving spouse; a parent of a deceased child under 25; parents of a deceased child 25 or older if there is no surviving spouse; and a parent of a deceased child 25 or older who had no surviving spouse or children.
When it comes to wrongful deaths stemming from medical malpractice claims, parents of adult children who are not married and do not have children cannot sue for noneconomic damages. Additionally, adults who are 25 or older cannot pursue wrongful death claims for parents who die from medical malpractice.
The ban was adopted by the Legislature in the 1990s during a time when lawmakers were wrestling with increasing malpractice costs. According to a staff analysis, Florida is the only state to treat wrongful death suits differently based on whether they stem from medical malpractice.
Registered nurse Marcia Schelper shared a story about her 29-year-old son, JoJo, who died in September 2019. She told members of the House Civil Justice & Property Rights Subcommittee that her son had autism, Down Syndrome and was unable to speak or talk. He was also unable to get married or to have children.
When JoJo was gagging and choking, she took him to Cleveland Clinic for care but, she said, he was refused treatment. By the time she got him to a different hospital, she said her son was in septic shock and died. She said the hospital was found in violation of the federal Emergency Medical Treatment and Labor Act that requires hospitals to stabilize and treat anyone in an emergency room. But she is not able to sue the facility for noneconomic damages because of the law.
“The current law — the ‘free kill’ law — is pure discrimination against people with intellectual and developmental disabilities. And more than that, it is cruel,” she said. “Parents, especially those of special needs children, are forever parents and we are asking for the right to protect our children.”
The Senate counterpart (SB 262) is slated to be heard in the Senate Judiciary Committee on Jan. 31. Sen. Ana Maria Rodriguez filed the Senate bill.
One comment
Robert E. Oshel, Ph.D.
January 28, 2022 at 11:37 am
The article quotes Douglas R. Murphy Jr., president of the Florida Medical Association, as saying ““Lawsuits do not hold physicians accountable. Period. The Board of Medicine does.”
The fact is that the Florida Board of Medicine isn’t doing that good of a job holding them accountable. According to the a recent Public Citizen report I co-authored ranking all State Medical Boards based on the number of serious disciplinary actions taken per 1,000 licensees, Florida disciplines physicians for malpractice or misbehavior at less than half the rate of the state taking the most actions per 1,000 licensees. By the way, there is no evidence that Florida physicians are any better than those in other states; the low disciplinary rate does reflect better or better behaving physicians.
Furthermore, the bill to eliminate “free kill” isn’t just about accountability. It also is to compensate victims who are going without any compensation for their loss under the current law.
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