‘Free kill:’ Woman says father died from medical malpractice, working to close Florida law loophole

JACKSONVILLE, Fla. — Right now, efforts are underway to change a Florida law that prevents family members for suing doctors and hospitals if their loved one dies from medical malpractice. The law only applies to some -- those who are unmarried and have grown children.

It has been on the books for more than two decades and groups have been fighting it pretty much since then. One local woman is joining the charge after losing her father to medical malpractice. Sabrina Davis said she can’t sue, even though the autopsy she paid for proves the malpractice and the agency that regulates healthcare facilities found them at fault.

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“It’s shattering. It’s crushing,” Davis told Action News Jax Investigator Emily Turner. “A fine is a slap on the wrist, a note in their medical background is a slap on the wrist. But appearing against them in court, on how they failed my father, making them admit to their mistakes ... I want accountability. That’s what I want. And right now, I can’t do that.”

That’s because in Florida, if someone is killed by medical malpractice, their family can only sue if the victim was married. If they were single, widowed or divorced, their children must be under 25. Sabrina was 30 and her dad was divorced, so she didn’t have a case.

“It seemed unbelievable,” Davis said. ”It’s still unbelievable.”

She couldn’t sue, but she can try and change the law, known by many as, “Free Kill.” Davis became a member of the Florida Medical Rights Association, a group of people dealing with the same loss and sense of powerlessness who also want to see the law changed.

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Melody Page is the group’s founder and said 50% of medical malpractice cases go unheard because of it.

“Obviously there are some politics behind this,” Page said, “and our group is quite irked and I have been for a long time that the politics are coming before the people.”

There are bills in both the House and the Senate to close the loophole, but this isn’t the first attempt to change the legislation. The most recent was last year, when it passed the House but never made it to the Senate floor. Andy Bolin, an attorney who represents doctors and hospitals, testified against making the change, arguing to keep the law as is.

“It is a necessary balance, especially in a state like Florida, where the protections that have been in place for medical providers in the civil litigation context have been consistently stripped away over the last 20 years,” Bolin said.

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He says the law was aimed at keeping doctors in the state by lowering the cost of doing medicine. Allowing more people to sue, he said, would do the opposite -- increasing the number of lawsuits doctors face and raising medical malpractice insurance premiums.

The Florida Chamber of Commerce even wrote a letter to lawmakers last year on that point, threatening to dock leaders’ political score if they voted in favor of changing the law. The Chamber refused an interview on the topic, but it shows just how serious the debate has become.

“Over time,” Bolin said, “you continue to see that steady march and that steady increase in insurance premiums where you have a situation where, truly, physicians are either unable to practice or they are going to have to practice without medical malpractice insurance.”

Those fighting to keep the law, like Bolin, argue the price of practicing medicine drained the state of doctors 20 years ago -- and this helped.

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So Action News Jax Investigator Emily Turner pulled the numbers.

In the last 17 years, reports from the Office of Insurance Regulation show the cost of medical malpractice insurance has come down. In 2004, the total paid for premiums was $806 million dollars. Last year, it dropped to $699 million. If you factor in inflation, that’s a 41% price drop.

The number of medical malpractice lawsuits has dropped as well. According to the National Practitioners Database, the number of payouts has gone from 1,416 in the year 2000 to 967 last year.

The number of physicians has also rebounded. According to the state’s most recent report, the number of doctors has been steadily climbing, adding more than 11,000 new doctors in the last ten years.

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The numbers show, the crisis has been averted. But the question the legislature will face this coming session is: are these numbers an all-clear and an indicator it’s time to change the law? Or are these numbers buoyed because the law exists as it is?

Bolin argues they are a reason to maintain status quo.

”This unfortunately is just one of the last pieces of legislation that still provides some level of protection,” he said, “so if you have no other protections in place, taking away yet another one is only going to exacerbate the problem.”

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But that last protection feels like an offense to others, by barring their right to seek justice simply because of the marital status or age of their children. That’s why Davis is fighting to change it.

“I just don’t feel like it’s right,” she said, “that some things can have someone held accountable but if that person isn’t married or doesn’t have a child under the age of 25, their life doesn’t matter? That’s wrong.”

There will be a Duval Delegation meeting on November 22 and Davis said she plans to be there, along with other local families, to speak to lawmakers.

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