Families fight to end Florida’s little-known ‘free kill’ law: ‘I was in shock’

More than a year and a half after the Florida Department of Health charged her father’s doctor with malpractice, Sabrina Davis says she is still fighting for justice.

In 2020, the Gainesville resident’s 62-year-old dad, Keith Davis, came to HCA Florida Brandon Hospital with a swollen, painful knee. Despite clear risk factors, his doctor failed to diagnose a blood clot that ultimately killed him, the state alleged.

Davis, a certified medical assistant, said she told the doctor her father was at high risk for blood clots. She begged him to do an ultrasound of her dad’s knee or give him blood thinners. After her father’s death, she was determined to take his doctor to court.

That’s when she found out about a little-known 1990 Florida statute, dubbed the “free kill” act by critics.

Florida Statute 768.21, Section 8 states that if someone 25 or older dies due to medical malpractice in Florida, only a spouse or a child under 25 can sue for pain and suffering. As a result, countless loved ones of people who fall into this category — from single adults to widowed seniors — are effectively blocked from having their day in court.

Davis was 30 when her father died.

“I was in shock. I was in disbelief,” Davis said. “I thought maybe I wasn’t explaining myself accurately. I called eight different lawyers and I thought maybe they were misunderstanding me.”

Since then, Davis has joined efforts with the grassroots Florida Medical Rights Association and has made repeated trips to Tallahassee in an effort to get the law changed.

More cases fall under this exemption than people realize, said David Paul, a Central Florida attorney specializing in malpractice. He’s had to turn away client after client, even when he feels there’s a strong case. The law applies not only to Florida residents but anyone who comes to Florida from another state and gets treated here.

“Every single time it’s painful,” Paul said. “It’s heart-wrenching, because it doesn’t matter how egregious the malpractice is, it doesn’t matter how reckless the conduct is …this law, you know, basically gives them immunity when no other profession in the entire state of Florida has this kind of immunity.”

Florida is the only state with laws that differentiate medical malpractice from other types of wrongful death, purportedly to bring down medical malpractice insurance premiums.

In the 30 years since the statute passed, multiple bipartisan attempts to reform it have fallen short against powerful interests, including the Florida Medical Association and medical malpractice insurers.

Defenders argue that doing away with the “free kill” provision could drive up health care costs that would ultimately be passed on to consumers.

“Medical malpractice insurance premiums are a huge issue in Florida,” said William Large, president of the Florida Justice Reform Institute and a leading lobbyist for the medical industry. “It is an embedded cost that is passed on to everyone who utilizes our health care delivery system.”

Despite the Legislature’s efforts over the years, Florida’s malpractice insurance costs are among the highest in the country. Doctors in Miami will sometimes pay hundreds of thousands of dollars more per year than those in Los Angeles, for instance, according to sampling by the Medical Liability Monitor, which reports on malpractice news.

Opponents argue the law discriminates against vulnerable populations, from the elderly to disabled adults who may never marry or have children.

“Our current laws don’t reflect that families come in all shapes and sizes,” said Florida Senate Democratic Leader Lauren Book. “No matter who you leave behind — it should protect families equally in cases of wrongful death.”

Book said she is planning to reintroduce a bill during the next legislative session in March to end the exemption. The bill failed to get a hearing during the 2023 session. A similar bill, in 2022, received overwhelming bipartisan support in the House but couldn’t gain traction in the Senate.

One key player who could move the issue forward, Sen. Clay Yarborough, said he is “open” to taking up the issue in the Judiciary Committee he chairs.

“I hope we can have a solution and help these families,” said Yarborough, a Jacksonville Republican.

Unable to sue, Davis reported her dad’s doctor to the state health department. The department did an investigation and issued a malpractice charge, referring the case to the Board of Medicine, a group of 12 physicians and three non-physicians appointed by the governor to regulate state doctors.

The state ultimately settled with the doctor, issuing a final order in December 2022. As part of that settlement, the doctor neither admitted nor denied the accusations, but agreed that if they had been proven, he would have committed medical malpractice.

He was ordered to pay a $7,500 fine, required to take continuing education classes, and a letter of concern was added to his file.

When Davis heard the punishment, she started crying.

“I was like, that’s nothing. That’s a slap on the wrist,” she said. “Where’s the real motivation to do better when the punishment is so low?”

When contacted about this story, HCA provided a copy of a statement the hospital made in 2021.

“The death of a loved one is always very difficult, and our hearts go out to this family. We are committed to providing high quality care to our patients and rely on physicians to make medical decisions based on their expertise and each patient’s unique healthcare needs.”

Cases brought by the Board of Medicine rarely result in serious consequences, a 2017 South Florida Sun-Sentinel investigation found.

“In our experience, that has not been a real concern. It has not been a hammer over their head like a lawsuit is, because a lot of times they just slap their hand,” said Steven R. Maher, an Orlando-based attorney specializing in wrongful death and medical malpractice suits.

Medical malpractice that doesn’t result in death can be tried in court, regardless of age, marital or parental status, said Geoff Moore, an Orlando-based attorney specializing in malpractice.

“If you hit someone and they’re paralyzed, their medical bills could be 10-plus million dollars to cover them for the rest of their entire life,” Moore said. “When you have a death case, it’s almost like an advantage to the other side.”

Cindy Jenkins, a vocal opponent against “free kill,” said money isn’t what is important to people who have lost their loved one. They want accountability that they believe may only come through a lawsuit.

Her daughter, Taylor Jenkins, died at 25 years old earlier this year. Cindy Jenkins wanted to take the hospital that treated her daughter to court, but found out that she was a “free kill.”

“I just keep saying this is not about money,” she said. “We’re being touted as the free state. We’re really the free kill state.”

Jenkins believes national recognition of this issue may be the only thing to truly bring about reform.

“It’s going to take everyone knowing about this, and a huge awareness and people being upset so that it will change,” she said.

Ccatherman@orlandosentinel.com; Sswisher@orlandosentinel.com