The Florida Free Kill debate of 2021
History and the political "reasoning" for Florida's Free Kill law
Florida’s Free Kill law has been a controversial topic since inception. The law was put in place in 1990 as an amendment to Florida statute §768.21 as subsection 8, where it negated accountability for medical malpractice causing negligent death for Florida medical providers, in adult patients who are unmarried and have no minor children.
The first presumption under which the amendment was put in place is that it would curb the rise of Florida’s rising medical malpractice rates. In the early and mid 80’s changes in malpractice insurance policy were also put into place to spread the cost of the insurance rates across all doctors in the state of Florida*. In 2020, however, the average medical malpractice rate for an Obstetrician was still astronomical at $76,452 per year,** with the Free Kill law (§768.21(8)) still in place.
The second presumption under which the amendment was put in place is that there were not enough physicians living in the state to cover the amount of patient demand for treatment. The intent of this legislation was to court doctors to move to Florida. Several enterprising legislators decided to do so by inviting doctors with financial incentive. The first one being to eliminate the requirement to carry malpractice insurance under certain conditions. ***
We have more than enough physicians in the State of Florida now. According to Governor Ron DeSantis’ 2020 Physician Workforce Annual Report, there is enough coverage for the state. “From the 2010–11 survey cohort to the 2019–20 survey cohort, the number of actively practicing physicians increased 26.6%, from 43,188 to 54,677. During this same time, the population of Florida increased 14.8%, from 18.8 million to 21.6 million.6” ****
Neither of these presumptions for creating a Free Kill law, both have been stated over and over in legislative sessions and even in the Florida Supreme Court. Neither presumptions hold any weight in 2021, a year of equality for all Americans, and the information is so easy to dispute all it takes is a simple google search.
The effect of Florida’s Free Kill law did nothing to decrease malpractice premiums. In fact, rates are still very much on the rise. There are, however aspects at play that affect the rising premium costs, such as Florida §458.320, that allows physicians to opt out of carrying medical malpractice insurance, by allowing them to protect their assets from lawsuits by using trust accounts, bank letters of credit and similar arrangements. These laws allow Florida doctors to remove themselves from the pool, thereby shrinking the population of the remaining doctors who must purchase insurance at a premium, since the same cost of coverage for the state is spread across fewer physicians.*** Since 2003 a growing number of doctors are uninsured. In 2008 roughly 1 in three Florida doctors did not carry medical malpractice insurance. This leads to the cost rising for all physicians, as it is the same statewide cost with a calculation spread across fewer doctors. This is one of the the true culprits of rising medical malpractice premiums, not Florida's Free Kill law.
2021 legislation HB651 & SB1112 and the political debate of the value of life over the value of a dollar
The obvious profiteers here are medical malpractice insurance carriers. In the 2021 session, Florida House Representative Spencer Roach (R), a person who falls into the Free Kill category, submitted a repeal to the portion of §768.21(8) that pertained to adult children (still precluding the parents of adult children). In both the Florida House Civil Justice Committee’s first debate and the second debate in the Judiciary committee, Medical malpractice lobbyist representatives noted that insurance premiums would need to rise if Florida’s Free Kill law was removed, since the assumption would be that they would have to deal with more lawsuits, as medical practitioners would then be held accountable for all negligent deaths committed, versus only half. In fact, the case that a change in this law would affect the percentage of lawsuits would be extremely uncommon.
The vast majority of medical practitioners are not causing negligent death. The stated reasoning for keeping §768.21(8) in place is smoke and mirrors for the fact that big insurance is overcharging Florida doctors who want or need to carry insurance in the form of premiums and the state legislation allows them to do so. The insurance companies use each opportunity that a bill on the topic of free kill is heard to blame the rising rates on this law, while the free kill population is at present unable to bring suit. The statute can’t be the cause of high premiums, it just doesn’t make sense.
The elaborate debate in 2021 took place first in the Florida legislature house session of the Civil Justice Committee on April 30, 2021. Bill 651 is read at 41.37. HB651 passed this first reading unanimously and gained a co-sponsor, Representative Emily Slosberg (D), making it a bipartisan bill, and keeping the focus on the value of human life. The bill continued on to the next committee, with pressure on legislators to not pass the bill. Rep Roach cited such pressure in the Judiciary Committee, where the bill was read a second time. In session, he called out the Florida Chamber for sending a letter to all voting members, impressing upon them the importance of not passing HB651 and threatening to dock each legislator who voted to pass House Bill 651 “ranking points.” The second reading of the Bill begins at 1:09. Florida Politics investigated and published an article stating that the offending email was sent by Frank Walker, the Vice President of Government Affairs for the Florida Chamber. Clearly the Chamber does not understand the effect this law has on the victims and their families.
In spite of being threatened, Florida House Representatives in both committees and on the entire House Floor at the third reading overwhelmingly voted YES to pass HB651 (99 to 16). This is a big win for the people. Through many challenges, the year 2021 has helped our country focus on equality of all life in so many ways. Perhaps there is hope that our government could finally reach a point where serving the best interests of the people is the top priority of politics.
After passing in the House, HB651 was moved to the Senate in Messages. There was a correlating Senate Bill (SB1112) that never even got off the ground, as it never landed on any committee agenda. The Senate instead abandoned SB1112, received HB651 from the House in Messages, and sent it to the Rules Committee, where it was never heard by the end of the 2021 session, despite hundreds of calls being made to the Rules Committee President, Senator Kathleen Passidomo, by Florida Free Kill change advocates.
The good news for Florida Free Kill change advocates, thanks to Representative Spencer Roach, is that we have managed to get 99 of 115 House Representatives to turn the corner and value the lives and quality of healthcare over politics. These public servants will remain in office next year. Hopefully they will consider sponsoring another Bill, that is even more powerful, to end the Free Kill law for all of those who it affects, our parents and our children. After all, if they are going to lose ranking points fighting for the people, it may as well be worth it for all the people.
For advocates, we will turn our efforts towards educating Senators and the Florida Chamber. An education campaign is up and coming. To learn more, or participate please join Florida Medical Rights Association twice monthly meetings or check in our Facebook Group.
*(https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3837&context=lcp | page 40, section b)
** (https://medpli.com/florida-physicians-buying-guide-to-medical-malpractice-insurance-for-2020/#:~:text=Most%20Florida%20doctors%20carry%20malpractice,per%20claim%2F%243%2C000%2C000.00%20aggregate )
**** (http://www.floridahealth.gov/provider-and-partner-resources/community-health-workers/physician-workforce-development-and-recruitment/2020DOHPhysicianWorkforceAnnualReport-10-28-20FINAL.PDF | page 5-6)