Legislation that would cap the amount of money that could be awarded to Floridians suing for medical malpractice received support in the Senate this week.
Senators discussed Senate Bill 248 during a Senate Committee on Judiciary meeting Monday. The bill would revise limits on noneconomic damages for personal injury or wrongful death arising from medical negligence, and eliminate a state provision that prohibits adult children and parents of adult children from recovering certain damages in medical negligence lawsuits. The committee approved the bill, and it is now in the Senate Fiscal Policy Committee.
SB 248 sponsor Sen. Clay Yarborough (R-Jacksonville) said he and other lawmakers have listened to numerous stories about residents who are impacted by the wrongful death exception in Florida’s “Freekill Law” statute that was enacted in 1990.
“Let me be clear that the sole reason I place this issue in front of us is because, while an effort to reduce medical malpractice insurance premiums at the time was a worthy pursuit, implementing a ban on certain individuals to where they could not and still cannot access their judicial system to plead their case is a clear injustice,” Yarborough said. “If a decedent was past their 25th birthday, had no children under the age of 25, and was not married, no one may bring [forth] an action alleging medical negligence.”
Yarborough said there is no way to know how many legitimate claims of medical negligence might have existed over the past 34 years since the exception became law.
“But I’m confident that with a population like Florida’s, undoubtedly in that time frame, legitimate issues of negligence are bound to have existed,” he said. “For this reason, I put before the committee today a repeal of (the statute) in order to provide access for those who do not have it today. But because efforts over the last several years to do a clean repeal of the subsection have not garnered enough support to pass the legislature, I knew we would need to find a way to thread the needle and strike a balance if we hope to help impacted individuals.”
To offset the likely result of higher insurance premiums and afford constituents the opportunity to benefit from lower healthcare costs, Yarborough proposed adding caps—on claims of $500,000 for practitioners and $750,000 for non-practitioners—on economic damages if a claim relates to wrongful death stemming from medical negligence or personal injury stemming from medical negligence.
“Florida has the highest medical malpractice insurance premiums in the nation. We also have a rapidly growing population and changing demographics that dictate the need to have a legal environment favorable to attracting and retaining physicians, especially our high-risk positions. While not an official part of (Senate President Kathleen Passidomo and Sen. Colleen Burton’s) excellent Live Healthy initiative, this effort comes favorably alongside it and runs parallel.”
— Yarborough
Pasco County resident Laurette Phillipsen said her daughter, Heather, was a victim of medical malpractice when she died 15 years ago.
“I begged four different physicians to perform a lumbar puncture to check (her) spinal fluid pressure,” Phillipsen said. “When this was finally done, Heather’s pressure was more than twice the normal amount. She was placed on a medication to help relieve the pressure on her brain. She had two strokes. For the next year and a half, my daughter remained in a hospital, fighting for her life. I hope not one of you have to watch physicians—not once, but seven times—assist your daughter during a cardiac arrest. And this is all because of medical malpractice. Not by one doctor, (but by) four physicians. I’m asking you to make physicians accountable.”
Sen. Lauren Book (D-Davie) proposed an amendment to SB 248, which would eliminate the caps on claims that Yarborough proposed.
“While I understand that your amendment aims to allow these families access to the courts without opening up the hospitals and doctors to (an) extreme level of liability, I have a hard time putting a dollar amount on the pain and suffering felt by some of these families,” Book said. “So my amendment would simply repeal (that) subsection of the statute without imposing any of the caps on economic damages. I’m not sure that treating one injustice and limiting another is the right way to go.”
Eric Tinstman, a board member at the Florida Justice Association, spoke in support of Book’s amendment.
“I have been in the position (of) a medical malpractice trial lawyer to get these calls,” Tinstman said. “It is heartbreaking to have a client call and say, ‘I’m 55 years old. My son is 28. He went for a routine procedure and didn’t come out.’ I wait to hear their entire story because I want them to have an opportunity to explain themselves. At the end, you have to tell them there’s no case. You can’t do this in this state. There’s an exception for an adult child who’s over 25. There’s nothing you can do. With Sen. Book’s amendment, we are able to do that.”
Andy Bolin, a medical malpractice attorney from the Florida Justice Reform Institute who represents healthcare providers, spoke in opposition to Book’s amendment.
“I’m in opposition to the amendment because it eliminates the protections that are written into the amendment by Sen. Yarborough. If we’re going to expand the universe of claimants in the state, there must be some countermeasure, some counterbalance, that is going to provide fairness and balance in the civil justice system. There’s no way for us to know exactly how many of these claims are out there.
The largest plaintiff firm in Florida said they turn away several of these cases per week, so we know there are hundreds of these cases, if not thousands of them that are going to be filed each and every year. If we are going to remove that prohibition, then we also must have some counterbalance in the system.”
— Bolin
Sen. Gayle Harrell (R-Stuart)—who sponsors SB 7018, a component of the Live Healthy package—voted against Book’s amendment, claiming it changes the bill’s intent.
“It eliminates the counterbalance that I think is very essential,” Harrell said. “We are doing so much in the state to bring physicians to Florida. The whole Live Healthy initiative that we are doing is really to create our workforce and build our physician services. If we pass this amendment, we are going to eliminate the opportunity to put caps into these noneconomic damages.
It does not change the whole issue (of) wrongful death. So what our constituents are saying to us is not going to be changed by this. This eliminates that counterbalance that allows us to bring more physicians into the state. And people won’t be scared away by the horrendous cost of medical malpractice insurance.”
The committee voted against implementing Book’s amendment.