Families praise Clay Yarborough’s proposed ‘free kill’ repeal, but health care pros say it’s inoperable

Legislation that would upend Florida’s unique law barring many medical malpractice lawsuits is again advancing in the Senate.

Families who had little recourse after losing loved ones say change is needed to bring overdue justice to the state’s health care market.

Opponents, most of them in the medical or insurance fields, warn it will make an already expensive industry unaffordable for patients and practitioners alike.

The Senate Judiciary Committee voted 9-2 to advance SB 734, which would repeal a 35-year-old state statute — 768.21(8) — prohibiting adult children and their parents from collecting negligence and noneconomic damages for medical malpractice.

The law, which detractors have dubbed “free kill,” applies to anyone over 25 seeking medical care in the state, including residents and visitors.

Florida is the only state in the nation with the restriction on its books. Lawmakers passed it in 1990 when the state was trying to rein in increasing medical malpractice costs and attract more doctors to the state.

According to U.S. Department of Health and Human Services data, Florida ranks third nationwide, behind only California and Texas, in the total number of medical malpractice cases and damages paid out.

The bill’s sponsor, Jacksonville Republican Sen. Clay Yarborough, said the law today may have been well-intentioned, but it wrongly singles out “a narrow group of survivors” who, in any other case of negligence, could seek recompense. The exceptions, he continued, run counter to the spirit behind Florida’s Wrongful Death Act of 1972, which reads in part, “It is the public policy of this state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.”

“The legislative intent is clear. It was placed in law nearly 20 years before the exceptions at issue were placed in law and is still on the books,” he said.

“I filed (SB 734) because the current exceptions … are unjust and prevent accountability. … While we all understand no amount of money can bring back a loved one, to solely argue from a monetary or economic perspective would be misplaced because no individual and no institution is above accountability.”

At the end of the meeting, Yarborough indicated he is willing to amend the bill to ensure it can secure sufficient support from both legislative changes “and prevent exceptions from remaining on Florida’s books for another year.”

Naples Republican Sen. Kathleen Passidomo agreed there “is not enough money in this world that can compensate someone for the loss of a loved one due to medical negligence,” but she said that’s the central argument against passing Yarborough’s bill as-is.

Passidomo said bad doctors should face more serious penalties, including license revocations and business closures.

“The answer is to hold the wrongdoers accountable,” she said. “Writing a check will not fix the problem.”

Passidomo and Ormond Beach Republican Sen. Tom Leek voted against the measure, but Leek did not explain his vote.

SB 734, as it’s currently written, does not cap noneconomic damages, meaning plaintiffs could, in some cases, secure damages that might bankrupt some health care providers found liable for negligence.

It would also likely increase malpractice insurance premiums in Florida, which are already among the highest nationwide.

Those were the main issues for roughly a dozen advocacy organizations, companies, and medical professionals who urged Senators to vote down the bill on Tuesday.

They included the Florida Chapter of the American College of Physicians, Senior Consumers of America, Florida Hospital Association, Florida Insurance Council, and Florida Orthopaedic Society. Medical malpractice insurers ProAssurance Corp. and The Doctors Company, as well as the Florida Justice Reform Institute and Florida Chamber of Commerce, sent representatives to oppose the measure.

Adam Basford of Associated Industries of Florida advocated for a “more holistic approach” that considered the quality, accessibility, and cost of health care equally.

Retired OBG/YN Miriam Ramirez said she had to stop delivering babies due to the cost of medical malpractice insurance. Daniel Daube, a physician and surgeon who has worked in Panama City for more than 30 years, said that Florida needs more practitioners in the state for better care — something SB 734 would help prevent.

Kathryn Magar, Vice President of Claims and Insurance at hospital operator Health First, said the bill would make her company’s four medical facilities all but uninsurable.

“I’ve yet to meet a clinician who got into the medical profession to cause harm,” she said. “The ‘free kill’ term is, quite frankly, offensive.”

But according to a dozen or so family members who advocated for SB 734 at its first Senate stop, there isn’t a more concise term to describe their tragic experiences and frustration with the existing law.

Sabrina Davis told the story of her 62-year-old veteran father, who died of an undiagnosed blood clot. The Florida Department of Health determined his blood work was below the standard of care and amounted to medical malpractice, but his 84-year-old physician was nevertheless permitted to continue practicing medicine after paying a $7,500 fine and taking a class.

“Florida is better than this,” she said. “I believe we can attract good doctors and get rid of the bad ones. I don’t like to use this term, but in a way, this (law) is providing sanctuary for bad medicine.”

Cindy Jenkins, whose daughter Taylor died two years ago at 25 due to what she described as “horrific negligence” at a hospital in St. Johns County, said medical malpractice premiums are high in Florida because Florida has a lot of medical malpractice.

“The way you decrease medical malpractice premiums is to stop medical malpractice,” she said. “My child is a free kill. I have no justice.”

Lauren Korniyenko’s 70-year-old mother died in a hospital two days after what she called an “uncomplicated surgery to repair a fractured hip.” Brevard County law enforcement cordoned off the room as a possible homicide scene, she said, and the autopsy revealed staff ignored at least 10 “critical signs of a surgical site infection” that led to her death.

“In an era focused on greater scrutiny of government spending, this law enables the waste and abuse of taxpayer money,” she said. “Medicare’s investigation of my mother’s death found that the doctor failed to appropriately evaluate my mother’s condition, yet it could not refuse payment without a malpractice judgment, something that our family cannot possibly obtain without this law.”

Representatives from AARP Florida and the Florida Alliance for Retired Americans signaled support for the measure.

Lawmakers have tried for years to nix Florida’s 35-year-old “free kill” law. This is Yarborough’s second consecutive year doing so.

His bill last year (SB 248) initially did not cap claims on noneconomic damages. He later amended the item to include ones for up to $750,000, but the bill stalled out in its second Senate stop after clearing the Senate Judiciary Committee on an 8-2 vote.

Other lawmakers have filed similar bills for the 2025 Session, including SB 616 by Fort Myers Republican Sen. Jonathan Martin, whose co-sponsor, Zephyrhills Republican Sen. Danny Burgess, is also a co-sponsor of SB 734.

In the House, Orlando Democratic Rep. Johanna López and Fort Pierce Republican Rep. Dana Trabulsy are carrying HB 6017, which is co-sponsored by Davie Democratic Rep. Mike Gottlieb.

HB 6017 — which, like Yarborough and Martin’s bills, has no caps on damages — advanced Wednesday with unanimous support from the Civil Justice and Claims Subcommittee.

SB 734 will be next heard by the Senate Appropriations Committee on Health and Human Services before going to a floor vote. HB 6017 has one more stop at the House Judiciary Committee before it’s subject to a full vote by the chamber.

SB 616, meanwhile, awaits a hearing before the first of three committees to which it was referred — all the same as those assigned to SB 734.