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Supreme Court Upholds Free Kill in Florida

June 20, 2018

 

In 1993, Morris Mizrahi allegedly suffered a wrongful death at North Miami Medical Center due to medical malpractice.  Upon death, Mr. Mizrahi's children wanted answers and justice.  They wanted what any normal loving family would want in the case of medical malpractice causing death would want, accountability.  But under Florida law, there was none to be had. 

 

They learned the grave truth; that under Florida law, adult children of the deceased are unable to file suit and seek justice. Not even if the medical errors are as completely obvious as an x-ray showing medical equipment left behind, sewn up inside a patient, resulting in death.  Not even if a patient is dropped on the floor, crushed by machines in disrepair or falls out of a hospital window.  

 

The Mizrahi Family filed suit anyway, bringing the case through trial all the way to Florida's Supreme Court. The process took two years.  In 1995 they posed the question to the court:

 

"DOES SECTION 768.21(8), FLORIDA STATUTES (1995), WHICH IS PART OF FLORIDA'S WRONGFUL DEATH ACT, VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FLORIDA AND FEDERAL CONSTITUTIONS, IN THAT IT PRECLUDES RECOVERY OF NONPECUNIARY DAMAGES BY A DECEDENT'S ADULT CHILDREN WHERE THE CAUSE OF DEATH WAS MEDICAL MALPRACTICE WHILE ALLOWING SUCH CHILDREN TO RECOVER WHERE THE DEATH WAS CAUSED BY OTHER FORMS OF NEGLIGENCE?"

 

Full court documents can be found here

 

Florida is the only state with a Statute protecting medical practitioners from being held accountable for negligent death.  Additionally contradictory to the statute's existence is that other forms of negligent death, under Florida law, can be held accountable under circumstances such as MVA's, slip and falls, public servant errors and literally any type of negligent death other than medical.

 

The Supreme Court's response to the question did not come until the year 2000, and was stated as follows: 

 

“The statute's disparate treatment of medical malpractice wrongful deaths does bear a rational relationship to the legitimate state interest of ensuring the accessibility of medical care to Florida residents by curtailing the skyrocketing medical malpractice insurance premiums in Florida.”  Id. at 828.   In so holding, the Third District recognized that “escalating insurance costs adversely impact not only physicians but also, ultimately, their patients through the resultant increased cost of medical care.” 

 

Healthcare costs have risen universally across the United States over the past decade, as has malpractice insurance.  This Florida Statute is doing absolutely nothing to prevent a rise in health care costs for the state.  Because the facts show otherwise, in my humble opinion, the Florida Supreme Court's response was a sham.  The question posed regarding the statute being a violation of the federal constitutional was completely dismissed.

 

See graphic from Milliman Medical Index*

 

 

Florida Medical Rights Association intends to address what has come to be known as Florida's Free Kill law in a different way from Mizrahi.  We have found that overwhelmingly, our current Senators and House Representatives are not aware of this Statute 768.21.8.  It was put into effect so long ago that the actual records are not available online.  Note that all Bills and Supreme Court documents are currently available online from 1979 forward. 

 

Upon learning about the statute, State Senators and House Reps alike are surprised.  While it is challenging to get a response from most of them, the ones who do reply immediately see that change must happen to protect the constitutional rights of Floridians as well as the safety of the people who receive medical care in the state.

 

The majority of Florida residents and visitors are also largely unaware of Florida Free Kill.  It is imperative that we come together, share this information and perpetuate an amendment which provides improved accountability and patient safety for everyone.

 

We currently have at least two legislators who are willing to co-sponsor a House Bill.  The wheels of politics must turn at the right time, when we have a Governor in place who will allow a Bill to amend the act to be heard on the senate floor, it will be presented.  Under the current Governor, Rick Scott, there is a real possibility that he would veto the Bill and it would never be heard. In the meantime, we aim to raise awareness and gain support with public servants and citizens alike.  Please contact your local State Senators and House Representatives. Make them aware of Florida Free Kill.  Please take our quiz to find out if this law affects you or your family members directly. 

 

Raising awareness has a cost.  Our current expenses include:  Filing fees, print material, and web hosting services to name a few.  We appreciate any donation that you are able to provide. 

 

 

 

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