South Florida Sun-Sentinel (Sunday)
‘Free kill’ malpractice repeal fails
Efforts to repeal the “free kill” provision of Florida’s Wrongful Death Act saw progress during this year’s legislative session but ultimately failed, leaving advocates disappointed that millions of Floridians still have no pathway to sue if their loved ones are killed by medical malpractice.
The 1990 statute states that if a doctor’s mistake kills someone who’s over 25, unmarried, and without children under 25, no one can sue for noneconomic damages, also known as pain and suffering. This bars loved ones from pursuing suits because the payout for economic damages often is so small that no lawyer will take the case.
The law applies to people including widowed seniors and unmarried adults without children. Critics call these people free kills.
Defenders say the law is necessary to cut down on medical malpractice insurance premiums and, by extension, consumer health care costs. Florida’s malpractice insurance rates are among the highest in the country, despite having the free-kill law on the books.
Five total or partial repeal bills were proposed. All failed to gain traction before Florida’s 2024 legislative session ended March 8.
“This legislative session was terribly disappointing in the fact that there were so many bills, and then nothing happened,” said Marcia Scheppler of Lakeland.
Her son Joseph “JoJo” Thompson died of septic shock in 2019 at age 29, shortly after being turned away from the first Florida hospital where his mom took him.
He had severe intellectual and developmental disabilities and the mental age of a 2-year-old. He could not marry or have children, making him a free kill as soon as he turned 25. Changing the law now wouldn’t bring him justice, but Scheppler is determined to improve things for others. “I miss my son every day. He made me a better person,” Scheppler said. “This should never happen to anyone.”
State Sen. Clay Yarborough, R-Jacksonville, said he plans to refile his bill to undo free kill next year. His measure, SB 248, had a single hearing in the Senate before the legislative session ended.
“I do believe it is an unjust law,” Yarborough said. “It is now 34 years on the books. There have undoubtedly been instances of medical negligence covered over because of that law.”
One controversial sticking point with Yarborough’s proposal was an amendment that would have put a cap on all malpractice lawsuits.
Yarborough proposed limiting noneconomic damages to $500,000 for a suit involving a doctor and
$750,000 for nonpractitioners. He said he is open to negotiating the amounts.
This amendment won support from leading industry groups such as the Florida Osteopathic Medical Association and Florida Hospital Association, which have historically defended “free kill” as necessary to reduce malpractice insurance premiums.
Yarborough called those caps an “acceptable compromise” that would allow families to get justice while balancing rising health-care costs. About 30 states have such caps.
The Florida Supreme Court struck down medical malpractice caps as unconstitutional in 2014 and
2017. Yarborough said it’s possible the court with its present makeup could rule differently.
But the cap proposal has turned off some advocates of the repeal.
Melody Page, who in 2017 co-founded a grass-roots working group aiming to change the law called the Florida Medical Rights Association, said she’s grateful for the awareness that the Senate hearing brought but is “relieved” SB 248 didn’t pass. “That bill, had it gone through, would have affected a lot of living people who suffered malpractice and you know, it wasn’t worth the trade,” Page said. “I don’t think we should be compromising on people’s lives.”
Page said she has “zero confidence” the current Legislature will pass a reform given their failure to do so over the last several years. She added that she feels many current legislators are “on the side of big corporations rather than the people.” Others, like Sabrina Davis, were willing to accept restricted malpractice payouts if it led to a repeal.
Davis, from Gainesville, lost her father in 2020. The Florida Department of Health ruled his doctor committed malpractice, and gave
the doctor a small fine and a letter of concern. Barred from pursuing a lawsuit on behalf of her dad, Davis says she doesn’t feel she got justice.
One of the proposed repeals this session was named after her dad: the Keith Davis Family Protection Act, SB 442/HB 129. Though that bill didn’t gain traction, Davis said it was huge that Yarborough’s bill got a Senate hearing.
The Senate has historically been less receptive to repealing the statute than the House, which passed repeal bills in 2021 and 2022 by overwhelming margins.
Davis said she is optimistic the added awareness increases the odds of a repeal next session.
“This law being talked about in the Senate was record-breaking,” Davis said. “To hear some senators refer to it as an injustice … that’s a huge step, just to have that on record. That somebody admitted that, that the Legislature acknowledged that, is super powerful.”
Grass-roots advocates such as Scheppler, Page and Davis have spotlighted the free-kill law by writing lawmakers and traveling to Tallahassee to share their stories.
Those activists should keep working, said state Rep. Spencer Roach.
“My message to the families is you’ve been heard,” said the North Fort Myers Republican.
“You’ve been heard not just by me but many of my colleagues in the House.
This is a good example of how grass-roots activism and engagement still matters.”
Roach sponsored a bill this
session, HB 77, that would have partially repealed free kill by allowing parents to pursue damages on behalf of their adult children.
Roach said he plans to reintroduce it again if he wins reelection.