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Bill would end some med mal suit immunity

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Parents of adult children could sue for negligent death

Rep. Spencer Roach

Rep. Spencer Roach

A bill that would end the prohibition for parents filing negligence actions when their adult children die from medical malpractice has cleared a House panel.

The Civil Justice and Property Rights Subcommittee passed HB 651 18-0 on March 4 after hearing testimony from parents who had lost children and representatives from medical providers and insurance companies who warned the bill could raise insurance rates.

Rep. Spencer Roach, R-North Ft. Myers, said the bill would address the “Dr. Kevorkian-like” situation where an unmarried, childless adult could sue for injuries from malpractice unless that person dies, and then there is no cause for action.

“The living can sue, the dead cannot,” Roach said. “This is why the term ‘free kill’ was coined.”

He said in 1990, the Legislature specifically allowed parents and adult children of adults who died from negligence and had no spouses or minor children to sue for noneconomic damages. However, if the cause was medical malpractice, a child 25 or older could not sue over the death of a parent, and parents could not sue in the case of adult children 25 or older. Roach’s bill would now allow parents of adults 25 and older to sue for noneconomic damages.

“Florida is the only state that does not allow this type of recovery,” Roach said.

Testimony on the bill fell into two camps: parents who said they had lost adult children to medical malpractice and were unable to sue and insurance and medical representatives who said the change would raise malpractice insurance costs in Florida, which is already near or at the highest in the nation.

Marcia Scheppler said her 29-year-old son with Downs Syndrome, JoJo, was choking and gagging when she took him to an emergency room, which refused treatment. She took him to a second hospital, where he died from septic shock. An investigation by Medicare determined the delay in treatment contributed to his death, but Scheppler said she was unable to seek any legal remedy.

“Because under the Florida free-kill law, there’s no justice for egregious medical neglect and malpractice for people like JoJo,” Scheppler said, adding the law particularly impacts adults with mental or developmental disabilities who are unlikely to be married or have children.

“Holding health-care workers — and I am one myself — to a higher standard when treating JoJos is the right thing to do because these are our most vulnerable citizens,” she said.

Archibald Black said the committee meeting came on the second anniversary of his 33-year-old son dying from a botched medical procedure to treat a blood clot.

“Whenever a man or woman’s negligence causes a loss of life, there must be a law in every state that holds them accountable, instead of law that tells hospitals and doctors they don’t have to worry about the death of patient caused by their malpractice or negligence, because the state has their back,” Black said.

George Feijoo, representing the Florida Insurance Council, said medical malpractice insurance carriers are already losing money in Florida, even after allowing for investment income. He also said rates for physicians and surgeons in Florida are either the highest or among the highest in the nation.

“Rates were going up before COVID-19 and this legislation will guarantee higher rates,” said Feijoo, acknowledging the pain of Black, Scheppler, and other relatives who testified. He added, “It’s in the interest of the general population of the state of Florida [not to pass the bill]. I believe in these numbers and these facts.”

Mark Delegal, representing three companies that insure doctors and some hospitals, said doctors in some practice areas pay several times the insurance premiums as those in other states and the bill would worsen that.

“The balance you’re going to have to decide today is can we compensate every single person in every single circumstance who has sadness,” he said. “There’s been an assertion here this won’t cause rates to increase. No one has presented data on that.”

Tiffany Faddis, of the Florida Justice Association, said that organization supports the bill, and would like to see it expanded so adults 25 or older could sue if a parent died from medical malpractice.

She said it is inconsistent to allow parents to make recovery in all kinds of negligence cases except medical malpractice.

“There needs to be change, there needs to be accountability,” Faddis said, adding under the current law health-care providers “have the ability to walk away from something they did, not intentionally, but negligently.”

“What we’re really talking about is accountability. In every profession there has to be accountability,” said Rep. Geraldine Thompson, D-Orlando, during debate on the bill. “A standard of care should be expected from people in the medical profession, or is there a carve out that allows people to walk away because they know there is no accountability?”

“The system in many ways is broken. I think there are arguments on both sides,” said Rep. Vance Aloupis, R-Miami.

He endorsed the call by other representatives to take a broader look at what affects medical liability insurance rates as well as Florida being the only state not to allow such claims. Aloupis recounted that when his first daughter was born and he and his wife were deciding which ob/gyn to use, in every office they visited, “There was a little placard on the front desk that said, ‘This office does not carry medical malpractice insurance.’”

(Doctors in Florida are allowed to not carry malpractice insurance if they meet certain conditions.) Roach said the bill will not affect good doctors.

“What we’re talking about here is bad doctors, medical malpractice negligence. Many of them are so-called second chance doctors, they’ve come here because they’ve lost their license in other states,” he said.

Roach said the bill would apply to him because he is 43 and single and without children.

“If something happened to me and I was killed as the result of medical negligence, I want my mom to be able to go into court and to tell her she can’t because insurance rates may go up,…that’s not good enough for my mom,” he said.

“If you’re a Republican and you ran a campaign about protecting the sanctity of life and holding bad actors accountable, you should vote up on this bill. If you’re a Democrat and you ran a campaign to ensure that every class of people enjoys equal access to the courts and equal protection under the law, you should vote up on this bill,” Roach said.

The bill next goes to the Judiciary Committee and if it passes there to the House floor.

A similar bill, SB 1112 by Sen. Ana Maria Rodriguez, R-Doral, was filed on March 2 and has been referred to the Judiciary, Banking and Insurance, and Rules committees.

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