Lawmakers again try to finish off Florida’s ‘free kill’ legal loophole
Sabrina Davis chose a vivid pink blouse to wear to her Orlando presentation. It stood out amid the muted browns and greys of the Orange County government meeting room surrounding her.
She walked up to the podium, slightly nervous, and glanced at the lawmakers assembled before her.
“I’m here today to share my dad’s story,” she told them. “On Thursday, October 15 [2020], my dad stood up and died.”
That presentation was not Davis’ first, nor did it promise to be her last. It was a continuation of a two-year effort to bring an end to Florida’s medical malpractice loophole its critics have sarcastically dubbed the “free kill” law.
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Five days to kill
Davis remembers the phone call from her dad – the first of a series that would lead to his heart blockage. It was a Saturday. His complaint was about pain in his knee.
He told her he couldn’t walk. She, like any dutiful daughter, suggested the former military man see a doctor, expecting him to waive it off.
“He avoided hospitals at all costs, but I knew it was serious when he agreed,” she recalled.
They drove to a Tampa-area facility near where he lived to get him checked out. His leg was red and swollen and felt warmer than usual to the touch. She and the family physician told the doctor that her father had a history of blood clots and suggested he order an ultrasound. She also told the doctor her father was taking blood thinners.
Davis said the doctor waived the recommendations, ordering her father to five days of bed rest instead.
“My dad was awake, eating, drinking alive talking, making plans,” she said. “On Thursday, I was on the phone with my dad, when [the doctor] came in the room and said, ‘Today, you’re being discharged for physical therapy.’”
Davis said the doctor was in the room for mere seconds.
“Nineteen minutes after we last spoke, I got a call from the hospital stating my dad was Code Blue,” she said, a term for a patient with no pulse.
Davis later found out her father toppled over when he tried to stand up.
When the doctor refused to order an autopsy, Davis said she paid for one out of pocket, knowing what the results would be.
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“Your dad has a 9-inch-long blood clot,” that moved from his leg to his chest, she recalled him saying. “100% preventable.”
Davis filed a complaint with the Florida Board of Medicine, which later settled with the doctor. Settlement documents show the doctor admitted no fault but, had the accusations been proven, admitted they would’ve been violations of multiple state laws. The doctor agreed to several fines and five hours of education classes about blood clots.
However, Davis found no success when she tried to take the doctor and the hospital to court. Lawyers kept asking how old she was (30) and if her dad was married (no).
“They said they can’t help me,” she remembered.
David ran into Florida’s medical malpractice exemption, also known as the free kill law. Buried in the codes about wrongful deaths is a specific carve-out limiting who can file a medical malpractice suit in the Sunshine State.
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“Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury,” the law reads. “The damages specified… shall not be recoverable by adult children and… by parents of an adult child with respect to claims for medical negligence.”
In other words, if the person is an adult, unmarried and has no young children, no one can legally sue the doctor. In the past, insurers argued the law is necessary to keep malpractice insurance costs down, saying Florida is one of the most expensive states in the nation.
Davis says the practice is unfair, citing the fact that Florida is one of two states with a law like this on its books.
“They’re still billing my father’s estate for any unpaid medical bills and there’s nothing I can do because no lawyer can help me and take my case because of this law,” Davis said.
Increasing calls for change
There have been past attempts to strike free kill off Florida’s books, with little success so far. However, the tides appear to be shifting thanks to efforts by Davis and other activists.
Florida legislators tried to get a bill striking the loophole from the books in 2022 but ran into headwinds in the Senate despite being backed by lawmakers in both parties.
The two bills died in the judiciary committee.
No bills have been formally filed ahead of the current session, but Davis said has a sponsor in both the Senate, where Miami-area Republican Ana Maria Rodriguez appeared to be poised to repeat her attempt to spearhead the effort.
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Rodriguez and her staff did not respond to interview requests Monday, though many lawmakers were busy moving to Tallahassee ahead of committee meetings.
Davis’ trip to Orlando last week was in search of a House sponsor, who are limited in the number of bills they can introduce each year. Her story – and her bright pink blouse – got the attention she needed.
“I would like to file the law,” freshman Rep. Carolina Amesty (R-Windermere) said, smiling warmly. She told Davis to get in touch with her aide in the audience after her presentation.
Both Democrats and other Republicans voiced their support, with one Democrat offering to co-sponsor the legislation.
Reached by phone, Amesty said she was touched by Davis’ presentation and didn’t believe the situation was right. She said she would spend her week in Tallahassee finalizing which bills she’d introduce but sounded optimistic that the free kill legislation would be among them.
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Davis wasn’t sure this attempt would succeed but said she was hopeful.
“It’s just overwhelming,” she said. “Sometimes I question myself when we speak. Are we really heard? [Amesty] reminded me that we are.”
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