Bipartisan efforts are again underway to rectify a unique Florida law that prevents lawsuits in many cases of deadly medical malpractice.
Senate Democratic Leader Lauren Book, Lithia Republican Rep. Mike Beltran, and Orlando Democratic Rep. Johanna López have refiled twin bills (SB 442, HB 129) to overturn the state’s so-called “free kill” law.
In general, the law bars family members of people who died due to medical malpractice from suing doctors or hospitals when the victim is an unmarried adult. The law applies to anyone over the age of 25.
Florida is the only state in the nation with such a restriction on its books. The law applies to anyone seeking medical help in the state, including residents and visitors.
“No matter who you are or who you leave behind, Florida law should apply to protect all Floridians equally in cases of wrongful death — that’s our goal,” Book said in a statement. “We are working to ensure equal protection under Florida law and to bring our state into posture with the rest of the nation by eliminating arbitrary carve-outs which leave families of adult children and parents suffering in cases of medical malpractice.”
The proposals from Book, Beltran and López — near-carbon copies of measures they filed last Session — would remove that restriction and allow parents of unwed adult children and the adult children of unmarried parents to seek damages in cases of medical malpractice.
The legislation is titled the “Keith Davis Family Protection Act.” It’s named for Keith Davis, a 62-year-old resident, Navy veteran and father who died Oct. 15, 2020, of a pulmonary embolism while in treatment at Brandon Regional Hospital.
Davis was admitted five days earlier with a swollen left leg. The emergency room staff were advised and took notes of Davis’ documented medical history of blood clots — something the doctor assigned to him, Rathinam Krishnamoorthy, failed to look into, according to Davis’ daughter, Sabrina Davis.
An autopsy she ordered and paid for after Davis’ death revealed he died of a massive saddle pulmonary embolism that originated in his left leg as a nine-inch blood clot. A Florida Department of Health (DOH) investigation also determined there was probable cause Krishnamoorthy committed medical malpractice by failing to treat the clot. The Florida Agency for Health Care Administration (AHCA) reached a similar finding about the hospital.
Krishnamoorthy ultimately received a $7,500 fine and was ordered to take continuing education classes. The hospital also offered to discharge Davis’ medical bills and repay his funeral costs if Sabrina Davis signed a confidentiality and non-disparagement agreement.
She refused and sought legal representation.
“I took the autopsy to eight different lawyers. Every single one of them was ready to take my case (before asking) the same two questions. ‘Was your dad married?’ No, my parents divorced when I was 2, but they get along … ‘How old are you?’ 30,” she said.
“No one could help me. I thought I was explaining myself incorrectly. That’s when the eighth lawyer brought me in and explained Florida Statutes 768.21 Subsection 8.”
The statute and subsection, in short, provide that the only people who can recover damages in cases of medical negligence or malpractice are their spouses or “lineal descendants,” not counting minors.
Two other measures up for consideration in the 2024 Session could also end that limitation.
One of them (SB 248), filed by Jacksonville Republican Sen. Clay Yarborough, would allow medical malpractice lawsuits after the DOH and AHCA find probable cause or the agencies fail to reach a judgment after nine months. In such cases, the deceased person must be older than 25, unmarried and have no children under 25.
The other measure (HB 77) by North Fort Myers Republican Rep. Spencer Roach would erase the state’s prohibition on parents of adult children recovering certain medical negligence damages.
It’s virtually identical to bills Roach and Doral Republican Sen. Ana Maria Rodriguez carried during the 2022 Session. Roach’s measure cleared the House by a 102-13 vote in March before stalling out in the Senate.
Roach and López collaborated on similar legislation earlier this year with support in the Senate from Book, who filed a companion measure. Like the measures Book, Beltran and López sponsored during the 2023 Session, the bills died without a hearing.
Lawmakers passed Florida’s “free kill” law in 1990 as a way to attract doctors to the Sunshine State. Despite that, Florida ranks third nationwide in the total number of medical malpractice cases and damages paid out, behind only California and Texas, according to U.S. Department of Health and Human Services data.