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Families say it's time for Florida's 'free kill' law to die; data shows they may be right

Law limits who can pursue medical malpractice lawsuits if adult or adult child dies
Posted at 7:42 PM, Sep 14, 2023
and last updated 2023-09-14 20:23:01-04

A daughter's grief

Three years after her father's death, Sabrina Davis, 33, is still fighting for his life.

"If it keeps somebody else from being in my position, then it's worth it," Davis told Investigative Reporter Katie LaGrone recently. "I believe that he would want me to keep going and not give up on this because he knew what it was. I knew what it was."

Davis is talking about what happened to her father in October 2020. Keith Davis, 62, who was on a blood thinner and had a history of blood clots, went to a Tampa hospital after his knee swelled up to a point he couldn't walk.

A picture that Davis provided to us before her dad went to the emergency room showed her dad's left leg extremely swollen and red.

But Davis said despite their requests to do an ultrasound for blood clots, the doctor refused and instead ordered physical therapy.

"They thought my dad needed bed rest. They thought he might have pulled a muscle," she explained. "It was red and it was swollen. It was so obvious that it was more than a pulled muscle."

A few days later, on the same day her dad was scheduled to be discharged, Davis got the call.

"They said, 'Your dad is code blue. He has no pulse, and he's not breathing. What would you like us to do?' I was like, 'You have the wrong patient. My dad is fine. I just spoke to him. He's being discharged today,'" she said.

That morning, her father died.

An independent autopsy later revealed her father had suffered a blood clot in his left leg that traveled to his heart and ultimately killed him.

"I look back and I'm like, dad, you knew it. You were sitting there with a clot. We both knew it," Davis said. "We both asked and nobody listened."

But after making several calls to attorneys, Davis was shocked to learn none of them would take on her father's case.

"After eight lawyers told me, 'Your dad is single, and you're over the age of 25, we can't help you,'" Davis said. "I started to think, am I explaining myself wrong? Are they not understanding me?"

What is the "free kill" law?

Critics call it Florida's "free kill" law. According to Florida Statute 768.21(8), if someone 25 or older dies due to medical malpractice in Florida, only a spouse or child under the age of 25 can sue for pain and suffering. Florida remains the only state in the U.S. with such a law in place.

Since Davis' father was unmarried and she was 30 years old at the time, the state law essentially banned her from seeking justice over her father's wrongful death.

"To be told you cannot pursue, it's like a punch to the gut," Davis said. "It's an awful feeling. It's like you have no rights when it comes to your loved one."

Passed in 1990, the law was originally created to attract doctors to Florida by protecting them from getting sued over medical malpractice and rising medical malpractice premiums.

But more than three decades after taking effect in the state, no data suggests the law has worked to accomplish any of those goals.

In fact, since 1990, federal data shows Florida consistently ranks among the top three states for the total number of medical malpractice cases filed and the total dollar amount paid out. In addition, medical malpractice insurance costs for doctors in Florida also continue to be among the highest nationwide.

"It's not meant to be overly harsh"

Andy Bolin is a trial attorney who represents the healthcare industry. He's also lobbied on behalf of the Florida Justice Reform Institute to keep Florida's so-called "free kill" law intact.

LaGrone asked Bolin recently why the law should stay on the books if it's not accomplishing its intended goals.

"Well, I don't think any one individual law or one individual reform is going to change things," he said. "It's certainly not meant to send a message or be overly harsh, but it is an example of the way that laws are made and the way they have to look at the impact to a community and society as a whole as opposed to in an individual case."

A mother's nightmare

Those individual cases also include Taylor Jenkins. Taylor was 25 years old, unmarried, with no children when she died earlier this year at an Osceola County hospital after she was rear-ended at a red light.

Doctors initially claimed Taylor died of a brain injury, but an independent autopsy revealed Taylor died of internal bleeding that went undiagnosed and untreated for hours.

Those findings were also confirmed by the county's medical examiner and prompted the office to change Taylor's official cause of death.

"I feel like I'm being told her life didn't matter," her mom, Cindy Jenkins, said.

She fears the law also strips a critical level of accountability from the healthcare system.

"It protects negligent doctors and hospitals instead of holding them accountable in any and every way possible," she said. "Because that's happening, it makes our hospitals dangerous for everybody."

The failed fight to end Florida's "free kill" law

"No, I don't think the law should continue," Florida Rep. Mike Beltran, a Republican lawmaker who represents Hillsborough County where Davis' father died, said.

Beltran has voted in favor of several failed attempts to repeal this law over recent years. This session, he plans to draft legislation to try to end it again. Democratic state Sen. Lauren Book, who introduced legislation last year to end the law, also plans to introduce a similar bill this year.

"It doesn't make sense that this class of people would be precluded from bringing malpractice claims like the rest of us," Beltran said.

But with a Republican-led Legislature whose priority has been tort reform, Beltran knows ending Florida's "free kill" law is unlikely to happen anytime soon.

"I'm not particularly optimistic that there's anything this year that's changed other than continued advocacy," Beltran said.

"I will never give up"

Advocacy is what Davis and Jenkins are currently focused on.

They, along with other families impacted, are working to spread the word and convince lawmakers their loved ones mattered and that how they died shouldn't be protected by a law that isn't solving the problem it was created to.

"I will never give up. I want to see this change," Davis said. "I will never stop fighting. It's just too important to me."

Florida's Board of Medicine eventually disciplined the doctor who treated Davis' dad over his death. In the end, the doctor was fined $7,500 for committing medical malpractice that resulted in the death of a patient.

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