Senate judiciary panel OKs reintroduction of med mal caps in wrongful death bill

Saying his proposal strikes a compromise, Sen. Clay Yarborough agreed to amend language onto his proposed legislation (SB 248) that would cap noneconomic damages in medical malpractice cases.

As amended, SB 248 caps non-economic damages for practitioners at $500,000 per claimant regardless of the number of health care practitioners who are liable. The limits would be $750,000 on “non-practitioners” who are liable, such as hospitals and health care facilities.

The cap would drop to $150,000 for health care practitioners in emergency medical cases.

Yarborough told the committee that he agreed to include the caps on pain and suffering in medical malpractice cases to secure passage of the underlying bill. The measure would eliminate a long-standing statute that bans adult children from adults from suing for pain and suffering if they lose their parents to medical malpractice and also precludes adults from suing for pain and suffering if their adult children die.

“Because efforts over the last several years to do a clean repeal have not garnered enough support to pass the Legislature, I knew we needed to find a way to thread the needle and strike a balance to try to help impacted individuals,” Yarborough said.

While the amendment helped the bill clear the Senate Judiciary Committee with just two “no” votes, it may prove a poison pill in the House.

Rep. Spencer Roach who has unsuccessfully championed the elimination of the policy for the last several years and filed HB 77 for the 2024 Session, told Florida Politics Sunday night that the caps on noneconomic damages in medical malpractice cases was a “nonstarter for me. I will continue to fight for a full repeal of Florida’s draconian ‘free kill’ law,” he said.

When asked whether the House would support the amended bill, Yarborough said he didn’t speak for the chamber.

Some lobbyists working on the bill say there hasn’t been communication with the House about the proposal yet.

Senate Democratic Leader Lauren Book tried unsuccessfully to amend Yarborough’s amendment to delete the malpractice caps. 

Clermont resident Sara Franqui supported Yarborough’s underlying legislation and spoke in support of Book’s amendment.  She said the Legislature shouldn’t create obstacles for people to recover damages in court, whether for medical malpractice or wrongful death suits.

She tearfully told the committee about her 28-year-old daughter, Sadie Dela Cruz, who worked at a hospital intensive care unit and lived at home with her as a way to keep the cost of living down.

“I breastfed her for two years. She lives with me. I know there’s something wrong,” Franqui said, leading up to the story of how Cruz died on Sept. 4, 2021.

“Her fallopian tube got twisted and she needed an emergency surgery. She was pleading for her life. The doctor was a new doctor, and the nurse was a new traveling nurse. They didn’t know her. But her (co-workers) who knew her for eight years said she was pleading for her life and they did not do anything.”

The caps are similar to ones that the Legislature passed 2003, but were subsequently found unconstitutional by the Florida Supreme Court. There has been a turnover of judges on the Supreme Court since those rulings, though, and industry groups believe the more conservative-leaning court would uphold the caps.

Yarborough also justified the caps by claiming that the state has some of the highest medical malpractice costs in the nation. In making those comments, Yarborough cited a 2023 Guy Carpenter report that puts Florida’s medical malpractice rates among the highest in the nation.

But the Florida Justice Association — the group that represents the state’s trial lawyers — claims that isn’t the case.

Florida Medical Association CEO Chris Clark told Florida Politics last week that the physician association suggested reinstating caps in exchange for supporting the underlying wrongful death legislation.

Meanwhile, a group calling itself the Consumer Protection Coalition issued a statement supporting SB 248 as amended.

The amended bill “represents a victory for health care consumers and their families and is a skillful compromise by Sen. Yarborough,” said Carolyn Johnson, vice president of government affairs at the Florida Chamber of Commerce, and a spokesperson for the Consumer Protection Coalition.

“Florida already faces a significant health care workforce shortage that is projected to only increase over time. Passage of this bill will help bridge that gap and ensure Florida families have access to a competent health care workforce to support Florida’s growing and aging population.”