Jesse Scheckner
It remains to be seen whether this is the year Florida finally sheds a unique law barring adult children over 25 and their parents from pursuing noneconomic claims for wrongful death in medical malpractice cases.
A bill (HB 6017) to repeal it was temporarily yanked from consideration just before Senators were to cast a final vote on it.
Jacksonville Republican Sen. Clay Yarborough, the measure’s sponsor, postponed the vote Wednesday after a lengthy argument over it and an amendment he proffered that would have capped claims in those limited cases to $1 million per incident.
The amendment failed on an 18-19 vote, with Senators from both sides of the chamber voting “no.”
Yarborough said he is willing to support a “clean repeal” of the statute in question — 768.21(a) — but he viewed the amendment, which was not presented during the committee process, as a compromise between delivering families justice while accounting for the financial impact to doctors and hospitals.
“We heard in committee some testimony from some folks that suggested there could be hundreds if not more cases added into the system if we repeal the current (law),” he said. “This would be a way to offset that and provide some balance in the equation.”
Most of Yarborough’s colleagues in the chamber disagreed the caps were needed. So, evidently, did the House, which passed HB 6017 last week without any limit on claims by a 104-6 vote.
HB 6017 and its Senate analog (SB 734), which Yarborough tabled, seek to end what many refer to as Florida’s “free kill” law. In 1990, lawmakers expanded Florida’s Wrongful Death Act to add more classifications of survivors entitled to noneconomic damages for general cases of wrongful death.
But the law included a carve-out excluding adult children 26 and older and parents of adult children from being able to sue for pain and suffering if their family member dies due to medical negligence and is not married or doesn’t have minor children.
The rationale at the time was that doing otherwise would send medical malpractice insurance premiums skyrocketing and send doctors fleeing from the state. That was the same reason Stuart Republican Sen. Gayle Harrell, a health care information technology executive, said she couldn’t support HB 6017 without the caps.
“The unintended consequences of this bill are huge,” she said. “We have such a need for physicians in the state of Florida, and I can tell you that this bill … is going to make it extremely difficult for any provider to come to Florida, when you see what is happening with medical malpractice rates in this state.”
Sen. Jason Pizzo, a Hollywood independent, said the notion that doctors wouldn’t be able to secure medical malpractice insurance was “ridiculous,” noting that no separate insurance category exists that excludes “doctors who specialize in making sure they operate on or treat people who have only adult children who can’t recover” damages under Florida law.
“Let’s not race to the bottom,” he said. “Let’s make our doctors better, more responsible.”
Several other Senators expressed similar sentiments and took issue with Yarborough not presenting the amendment until the last minute.
St. Petersburg Democratic Sen. Darryl Rouson noted that had Yarborough presented the amendment in one of his bill’s three committee stops this year, victims’ families could have weighed in on it.
“We did not give them an opportunity to respond,” he said.
Zephyrhills Republican Sen. Danny Burgess said he’s been “all over the board” on the issue, but he’s “evolved to believe that a clean repeal is the right thing to do.” He added that there is a “negligible amount of claims” that fit the bill’s narrow scope and that repealing “free kill” would not be much of a cost-driver in raising insurance premiums.
“There’s no difference between a 25-year-and-364-day-old adult and a 26-year-old’s value of life, in my opinion, and I don’t think anyone believes that, for the record,” he said. The law as it’s written, he continued, is “one of the most arbitrary of laws we have on our books.”
“It’s not grounded in any basis other than a number that was plucked out of the sky in 1990, which is why we find ourselves as the only state in the nation to have this law. … The caps on damages is a similarly arbitrary decision regardless of amount that is best left to a jury of our peers on a facts-specific basis, on a case-by-case basis.”
Fort Pierce Republican Rep. Dana Trabulsy, who filed HB 6017 with Orlando Democratic Rep. Johanna López, said last week that the bill isn’t meant to hurt those in medicine; it’s to provide equal legal protections to everyone in the Sunshine State.
“We do a very good job in the medical field here,” she said. “This is not an attack on doctors whatsoever. This is creating parity in the statute and among folks that can recover noneconomic damage.”
