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Will the Free Kill Finally END in 2024?

Year after year, advocates struggle to get attention from legislators, first to file bills to repeal, and then for the bills to be heard to end §768.21(8) Florida's Free Kill Law. The process of changing any law is arduous at best to begin with. Close to 75% of all bills filed in the state of Florida are never heard. Statistically speaking, annually, less than 6% of all bills filed in the State of Florida pass. For this upcoming 2024 session, four bills have been filed that, if passed, would either reshape the way medical negligence is handled in the sunshine state for everyone, or repeal the portion of the law that denies a certain class of people rights to access the law when things go horribly wrong. The Florida Chamber has been a continuous blockade through which advocates have been unable to break through. In countless attempts to open a discussion, the Florida Medical Rights Association has called, emailed and snail mailed. As you can see from this letter, sent by Frank C. Walker, III, the Director of Government Affairs at the Florida Chamber of Commerce in 2021,

Fwd_ FL Chamber Opposes HB 651_ Recovery of Damages in Claims for Medical Negligence
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to all House of Representatives in the state warning them not to pass a repeal bill, the State considers this law to be related to finances. It's a safe assumption that they consider a repeal to be a banking and insurance issue, while the people see this law as a constitutional human rights and patient safety issue.

Since the bill has twice passed the Florida House of Representatives, but never been heard in the Senate, in spite of being filed for three out of the last four years, it's safe to assume that the Senate and the Florida Chamber are related in their opinions, if only in spirit. Allowing all citizens the right to hold medical providers accountable could cost hospital corporations and malpractice insurance companies money. Not only would all families have equal access to sue, but the offending party would be forced to correct their mistakes, pay for re-education and update faulty equipment as so ordered by a court of law, instead of a room full of peers. So what will it take for the Senate and the Chamber to realize that all citizens in the state should have equal access to the law in medical negligence cases, like they do in every other type of negligence?

Here are the bills: HB 77 - A repealer bill filed by House Representative Roach. It repeals only the portion of the Free Kill Statute as it pertains to the loss of a child. This is the bill that has the highest probability of passing the full House, because it has passed in two previous sessions. This year it is already sitting with the Civil Justice Committee. Logically speaking, if this passes the full legislature, the next step would be to pass the portion of the statute as it pertains to the loss of a parent or other adult.

SB 310 - A mirror of HB 77, except in the Senate. This bill has also been filed for three of the past four years, but has never been heard by the Florida Senate. For the 2024 session, this was filed yesterday by Senator Martin. While he is a freshman, he has a background with a lot of experience in law, and he is also a Republican, which helps since they are the Senate majority in the state. In the past, this bill was filed by Senator Ana Maria Rodriguez and was, separately, by Senator Lauren Book.

HB 129 - A full repealer bill that restores the rights of all victims of gross medical negligence causing death in the State of Florida, regardless of marital status. This is the most pro patient safety and pro victim bill, but also poses the most risk for big corporations as a greater number of elderly people are at risk of being a victim of negligence than unmarried people in their 20s - 40s. During the past four years a mirror bill has been filed in the Senate by both of the same Senators, Ana Maria Rodriguez and Lauren Book.

SB 248 - This does not repeal the section stating that the law is repealed. This is a bill that places the following contingencies in place before a victim's family would be allowed to exercise their constitutional right to access a court of law in order to hold the person responsible accountable:1. The deceased earned a monetary income that was provided to someone. 2. The medical expense of the treatment which caused the death has been charged to the estate of the deceased.3. The practitioner responsible has been proven to commit negligence with probable cause (intent to kill).4. Both the Florida Department of Health or AHCA agree that probable cause is proven in the causation of death.5. Discovery leads to proof of probable cause within 180 days of the victim's death and is then filed with the AHCA.6. The AHCA does not dismiss the case within 9 months.7. Does not repeal the section on who can not recover damages "(3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child" (which is the only way a lawyer can afford to take a case).

SB 248 could later be twisted to pertain to the rights of all Florida victims. The bill does not call out subsection 8. Being that this is the most complex bill, with a lot of pieces that are contentious for the people, I'm going to highlight the most concerning pieces. First, it puts the Florida AHCA and the Department of Health between the people and the court system. Today, if someone does not fall in the free kill category, a spouse, or minor child may file suit in the case of gross negligence. The only requirement is that a lawyer agrees to take on the case, which they would only invest their time in if it is egregious enough that the case can be won. If the Department of Health/AHCA doesn't think you have a case, then you don't get to file one. It is insinuated that this rule would pertain only to the free kill class, and states that it expands who can file, but yet the law is all about interpretation and it does not specify subsection 8. It rather leaves this open for interpretation.

Sitting on the Board of Directors in each agency sits state appointed lawyers that also represent hospital corporations and medical malpractice insurance companies. Even if they added or changed agencies, the system itself protects the corporations, they can and would easily extend their reach. Worse, this bill has the potential to become a precursor to changing access to a court of law for all Florida citizens, not just those who fall into the free kill class.

Currently, the Florida Department of Health has a 17 step process that they undergo if a complaint that is filed is accepted and deemed worthy of attention. This process must be completed before a hearing takes place.

If SB 248 passes, it would be up to people who do not have any knowledge of the law to decide if there is a legal case or not, if they get to it in time, as the bill also decreases the filing time from 2 years down to 180 days. In my observation, many people have not gotten over the shock of sudden loss by the time 180 days have passed. In addition, both agencies are grossly understaffed and have high turnover rates. It's entirely possible that a complaint may not be acknowledged as received within the noted time frame.

There is also a stipulation that there must be probable cause in order for a medical negligence suit to be filed. Most negligence is committed by gross error, not gross intent. If the offender was driving a car, and caused an accident by making a mistake, there is accountability. So, does a surgeon need to intentionally sever an artery to be held accountable? Should we also change the law to say that a driver can only be held accountable if they pressed the gas pedal with intent before driving head first into another car injuring someone? There are other issues also, but the bottom line is that it does not prohibit the free kill class of people from filing suit. It simply adds hoops to jump through, but subsection 8 remains law. SB 248 must die.

The bill was filed by Senator Clay Yarborough, who in the past had voted for passing a repeal law in the Florida House. He has stated publicly that he does not believe the Senate would hear a repeal bill and he wants to get the conversation started. This bill reflects his intention, and it worked. The conversation started in the Senate. That said, it would be a terrible mistake and detrimental to all Floridians if big corporations managed to use this opening to influence the legislature for more profitable outcomes despite the clear patient safety issues.

**Mary Jo Cain Reis started End The Florida Free Kill Law and self funded a billboard located on a high traffic roadway in Orlando, Florida. She is interviewed here about the death of her father leading to the billboard

I have heard an unfortunate number of cases over the years. Clearly, I am not the only person who has stood up a web page to spread awareness about this draconian law. There are also 4 Facebook groups focused on the cause. Without a doubt, most people in the healing profession do not have criminal intentions, but to prove probable cause is nearly impossible.

A few examples from the real world; a small sampling of the calls and emails I receive, on an average of 1-5 per week, come in through the website or Facebook group page:

  • A surgeon who called the daughter to his victim to unburden himself and apologize for having operated under the influence of alcohol.

  • A new nurse who had never removed a PIC line, caused an air bubble to enter the patient's blood stream and gave a 25 year old young man a stroke causing brain death.

  • A hernia surgery that turned into exploratory surgery that ended the life of a man under 40 years of age.

  • A woman who during an annual check up to ensure an aneurysm size of a speck of dirt had not grown when the doctor probed it with a scope and forced it into her brain instead of doing an MRI.

  • A 25 year old car accident victim who's femoral artery was pierced with an A line (Autopsy proven).

  • A 32 year old suffering from dehydration who's femoral artery was pierced with a scope (Autopsy proven).

  • A 67 year old male who was given drugs that when combined, are known to cause death.

Can you guess how many of these cases were investigated by the Florida Department of Health? If you guessed 1, you are correct.

Yarborough accomplished one thing for certain, the conversation about change has begun in the Florida Senate. Below are links to a few of the recent articles that have focused on the topic of ending Florida Free Kill law.

Cindy Jenkins interview with Heather Crawford, Jacksonville news

Cindy Jenkins supports HB 129, The Keith Davis Family Act with ABC news


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