American Tort Reform Association warns Gov. DeSantis against repealing ‘free kill’

FILE - Florida Gov. Ron DeSantis speaks at the Heritage Foundation 50th Anniversary Celebration leadership summit, Friday, April 21, 2023, in Oxon Hill, Md. A new sense of urgency is growing among DeSantis’ allies as emboldened critics within his own party, especially President Donald Trump, work to undermine his presidential campaign before it begins. (AP Photo/Alex Brandon, File)

Less than two years after it removed Florida from its Judicial Hellholes list, a group dedicated to limiting damages plaintiffs can recover in civil lawsuits is warning Gov. Ron DeSantis that his state will go right back on the list if he repeals its “free kill” law.

“Free kill,” as its detractors refer to it, is a carve-out in Florida Statutes exempting hospitals and health care providers from liability for noneconomic damages in certain cases of wrongful death.

For all other types of wrongful death, the loved ones of the deceased can sue in Florida for pain, suffering and grief. But for adult children over 25 and their parents, “free kill” blocks them from doing so when the death was due to medical negligence.

Florida lawmakers voted overwhelmingly this Session for a bill (HB 6017) to repeal that restriction with no caps on what damages could be awarded. The measure’s Senate sponsor, Jacksonville Republican Sen. Clay Yarborough, called the 35-year-old “free kill” statute “unjust.”

Stuart Republican Sen. Gayle Harrell, a health care information technology executive, agreed, but voted against the bill after Yarborough forwent an amendment that would have limited damages to $1 million per incident.

She argued that without that cap, the change would have a “devastating impact” on Florida’s already sky-high medical malpractice insurance premiums and send doctors, nurses and other health care professionals fleeing from the state.

It was an argument many in the health care and medical malpractice insurance industries made as HB 6017 advanced through committees this year.

Sherman “Tiger” Joyce, President of the nonprofit American Tort Reform Association (ATRA), made a similar case for keeping “free kill” intact in a Thursday letter to DeSantis.

HB 6017, he said, “takes Florida in the wrong direction.”

“Signing this legislation is likely to hurt Florida’s healthcare environment, which already faces physician and specialist shortages and high insurance premiums,” he said. “This legislation is especially concerning since it expands damages available for emotional harm without reestablishing a limit on noneconomic damage awards in medical liability cases.”

Joyce noted that “even New York’s governor,” Kathy Hochul, a Democrat in one of the nation’s bluest states, vetoed comparable legislation for the third time in December, calling the measure “well-intentioned” but with unfavorable cost effects.

“We expect legislation like this in New York, not in Florida,” Joyce said.

DeSantis has not indicated whether he’ll sign or veto HB 6017, which Fort Pierce Republican Rep. Dana Trabulsy and Orlando Democratic Rep. Johanna López sponsored in the House.

Following the passage of key tort reform legislation in 2023, which among other things blocked insurance policyholders who successfully sue their insurers from recouping their attorneys fees, the ATRA recategorized Florida as a “Judicial Hellholes Point of Light” and removed it from its list of states with the “worst of the worst” court policies.

Florida previously held the No. 1 spot on the group’s “Judicial Hellholes” list in 2018 and the No. 2 position in 2019. Various parts of the state and its government made the list 15 times, with six appearances on the report’s “Watch List.”

“We encourage others that find themselves on the Judicial Hellholes list year after year to follow Florida’s lead,” Joyce said at the time.

According to the Center for Justice & Democracy at New York Law School, ATRA’s members are largely Fortune 500 companies — including representatives of the tobacco, insurance, chemical, auto and pharmaceutical industries — “with a direct financial stake in restricting lawsuits.”

“Although sponsored by major industries,” a “fact sheet” about the organization said, “ATRA has worked hard to present a dramatically different public image of itself.”

ATRA keeps a running list of “civil justice reform laws” it worked to pass in Florida, including unchallenged 2023 laws banning assignment of benefits in auto glass claims and a sweeping tort reform measure the Consumer Choice Center lauded in March as going “a long way to undo Florida’s reputation as a litigious hotspot.”