Editorial: Florida, end ‘free kill’ law that shelters malpractice from justice
If you know where to look, you can see Mike Ryan’s work across Central Florida. He was a high-ranking manager at the general contractor that built Disney’s Grand Floridian Hotel, Animal Kingdom and Coronado Springs resort, as well as Disney’s Tower of Terror and the 2006 expansion of the Lake County Jail.
But when Ryan died in 2021 at the age of 66, after what his family believes was a devastating medical mistake, he became almost invisible to Florida’s justice system. Ryan was divorced. His sons were over the age of 25. His six grandchildren? Their grief didn’t count. Nor did his seven surviving siblings.
Under Florida’s restrictive medical malpractice laws, Ryan became what is known as a “free kill.” He is one of hundreds, perhaps thousands of Floridians who might have been killed through medical error, but whose families are barred under state law from any opportunity to uncover the truth in a court of law or claim compensation for those who suffered from their deaths. And because those lawsuits are never filed, the public never becomes aware of them — and appropriately wary.
Among “free kills” in Florida: Unmarried people over the age of 25, who have no children under the age of 25. In other words, close to half of Florida’s adult population. Add to that the unknown mass of “buy one after you get one free” patients — who were later injured or killed by negligent practitioners or heedless hospital policies that might have been stopped by litigation from free-kill errors.
How can Florida lawmakers claim to respect life — but ignore a law that declares some lives to be worth nothing?
Cruel and arbitrary
The root of this particular evil is Florida’s Wrongful Death Act, passed in 1990. That law restricts which family members can bring suit for pain and suffering (and in some cases, economic damages) when a loved one dies as a result of medical malpractice.
This law is blatantly unfair, and seemingly unconstitutional for those who take the words “equal protection” seriously. As the Sentinel’s Caroline Catherman documented recently, many lawmakers have tried to ameliorate its heartlessness. But Florida’s medical establishment defends it fiercely, and its lobbyists are powerful.
Paid advocates for insurance, hospital and doctors’ interests often argue that harsh, and downright cruel, standards are needed to keep medical-malpractice insurance rates from going up. And they redirect public ire by fanning disgust over “billboard lawyers” who actively seek medical malpractice patients. It’s a smart move. Those ads are annoying, and Floridians have a hard time feeling sympathy for victims of wrongful death until it happens to their family.
That line of reasoning falls apart pretty quickly, though. This law has been in place for 30 years, and lawmakers have chipped away at plaintiffs’ rights in many other ways, including caps on attorneys’ fees. Yet Florida’s medical-malpractice laws are still among the highest in the nation. After three decades of this, has it occurred to anyone that lawsuits are not the only problem?
Of course it has.
That’s why the same groups have worked just as vehemently — though far more quietly — to undermine any attempt to step up enforcement of Florida’s pathetically weak discipline system for bad physicians, hospitals and other care providers. Tomorrow, we’ll take a closer look at Florida’s doctor-discipline system, and the ways that it fails vulnerable Floridians.
Pain and suffering
In a video posted by advocacy group Florida Medical Rights Association, Kelly Ryan describes the last weeks of her big brother’s life as “one excruciating procedure after another.” His medical records are missing pages, she says, and she had to witness hospital staff perform invasive medical interventions — including a two-hour struggle to re-insert a chest tube that he suffered through without anesthesia.
She and other family members believe Mike Ryan died because he was given a dose of blood thinner that he never should have received. Are they right? They may never know. They will probably never be able to question the team that oversaw his care, or see the records that they say are missing from his file. And the public won’t know what happened, either. That deprives them of information they need to keep their own families safe.
Yet the law says he doesn’t count – because he died. That’s the most insidious part of this law: Patients who fall into the free-kill category who survive malpractice can have their day in court.
Think about that one for a minute.
The bottom line is this: Over and over again, health-care industry lobbyists exploit the fact that many Floridians place a tremendous amount of faith and trust in the doctors and hospitals they turn to when they are sick or injured to defend and even expand. For the most part, that faith is justified: Most health-care practitioners want the best for their patients and do their utmost to provide it.
But every profession has bad apples, or simply negligent ones. Sometimes their mistakes have fatal consequences, and all those cases deserve an equal shot at justice. It’s long past time they receive it, with the repeal of this obviously unfair law.
The Orlando Sentinel Editorial Board consists of Opinion Editor Krys Fluker, Editor-in-Chief Julie Anderson and Viewpoints Editor Jay Reddick. Contact us at insight@orlandosentinel.com
