Patient advocates and state legislators are trying to change Florida’s Wrongful Death Law, which they argue harms two groups primarily—people over 25 with special needs and unmarried adults without minor children.
Commonly referred to as Florida’s “free kill law” by its opponents, state Statute 768.21 deals with damages allowed in cases of wrongful death. The law permits lawsuits for damages in situations of wrongful death, such as a car accident, gross negligence, or medical malpractice. The damages can be both “economic,” such as the deceased’s lost income, and “non-economic,” such as mental pain and suffering.
However, Florida’s Wrongful Death Law makes a key exception for cases of medical malpractice. While minor children or spouses of deceased adults can sue for damages with medical malpractice, adult children over 25 cannot for any reason. The same is true of parents of deceased children over 25.
Some of the law’s most passionate critics are relatives of medical malpractice victims.
Adults With Special Needs
Marcia Scheppler of Port St. Lucie lost her son Joseph “JoJo” Thompson when he was 29 and living in a group home. Mr. Thompson had severe autism and Down syndrome with a two-year-old’s mind.On Sept. 6, 2019, Mr. Thompson had a fever and could not eat. They rushed him to Cleveland Clinic’s Tradition Hospital in Port St. Lucie. Mr. Thompson could not communicate verbally and was terrified, forcing Ms. Scheppler to ask for help.
She said her son required sedatives to admit him to a hospital in the past.
But this time, the hospital staff was unwilling to help. She said the charge nurse was not only refusing to sedate her son but also admittance.
“Are you saying that you could see my son is in distress? Are you saying that you would let him die out there on the pavement before you get him inside to treat him? And he said, ‘Yes, I have 27 beds and 55 patients already,’” Ms. Scheppler said.
Her son struggled to breathe and had uncontrollable muscle movements. Ms. Scheppler called his family physician, who told her to take him to St. Lucie Hospital.
There, Mr. Thompson’s blood was tested, revealing he was septic. Despite efforts from St. Lucie Hospital’s staff, Mr. Thompson died from sepsis on Sept. 27, 2019.
A doctor urged Ms. Scheppler to make an EMTALA complaint. The Emergency Medical Treatment and Active Labor Act compels all hospitals to administer care to anyone within 250 yards of the facility. Mr. Thompson was 10 feet away from the first hospital’s ER.
The Florida Department of Health (DOH) and Human Services Centers for Medicare and Medicaid Services (CMS) completed their EMTALA investigation on Dec. 9, 2019, reviewing parking lot videos, records, and hospital staff interviews, finding that “the facility failed to provide an appropriate medical screening examination and stabilizing treatment for [Mr. Thompson] on [Sept. 9, 2019].”
The report says that Mr. Thompson is seen pacing in the parking lot while holding his head.
Marcia Scheppler (L) and Joseph "JoJo" Thompson (R) pose together prior to Mr. Thompson's death in 2019. Courtesy of Marcia Scheppler
Ultimately, this failure to provide care resulted in an “immediate threat” to Mr. Thompson’s health and safety, the report said.
The CMS report notified the state Office for Civil Rights, which has initiated its own pending investigation.
She said that her son was adjudicated by a Florida judge to never engage in “complex relationships” like marriage because of his two-year-old mental capacity.
Thus, his disability barred Mr. Thompson from ever having a spouse or children, making it impossible for him and people like him to receive the same medical malpractice protections as others.
“There’s nothing I can do for JoJo now. But when you think about it, with people with intellectual and developmental disabilities anywhere, they are like the most vulnerable people,” Ms. Scheppler said.
While Florida law can compel noncustodial parents to pay a special needs child’s financial support for their whole life, protections against medical malpractice once the child reaches the age of 25 are absent.
“But the very least you can do is protect the JoJos. There are only like 67,000 of them in the state of Florida. Can we at least protect them because they cannot [get married or have children]? They have no chance. Every single one of them will age out of being protected,” she said.
The Keith Davis Story
Sabrina Davis of Gainesville said her father, Keith Davis, 62, was experiencing leg pain on Oct. 10, 2020, and could not get out of bed.In 2008, Mr. Davis had a 10-inch blood clot in his right leg and was prescribed blood thinners.
At HCA Florida Brandon Hospital in 2020, Mr. Davis was allegedly refused his blood thinner and a leg ultrasound to rule out another clot.
Mr. Davis’s symptoms were consistent with his 2008 stay, but the hospital instead ordered physical therapy, Ms. Davis said.
On Oct. 15, 2020, the hospital called Ms. Davis, saying her father was “code blue” with no pulse. He did not respond to resuscitation.
The doctor called it cardiac arrest and refused to order an autopsy, Ms. Davis said. She paid for a private autopsy, which determined her father’s cause of death as a nine-inch blood clot in his leg.
A photo of US Navy veteran Keith Davis is seen in Gainesville, Fla., on Nov. 1, 2021. Courtesy of Kiara Cline
“And I was just in tears. I was crying. I was screaming. I was like, I knew it. My dad knew it. Like we knew it. We knew it. We begged them to check, and they never listened,” she said.
Attorneys all told her the same thing—unless your father was married or had children under 25, there was nothing they could do.
Ms. Davis filed a complaint with the Florida Agency for Health Care Administration (AHCA). They ruled the hospital was at fault for failing to follow protocol for blood clots, she said.
When she filed a complaint with the DOH, they ruled that her father’s physician fell below the standard of care and committed medical malpractice, the agency report said.
The DOH opted to fine the doctor $7,500 and administer continuing education classes on blood clots and their treatment, according to the DOH report signed on Jan. 14, 2022, by State Surgeon General Joseph Lapado.
Ms. Davis was still barred from filing a civil suit against the doctor for medical malpractice due to the Wrongful Death Law.
“This is the freedom of our country. We, per the Constitution, should have the right for equal access to the court and for a jury to decide, not because my dad was single and [had] no minor kids, his life matters less. No way,” Ms. Davis said.
The Legal Arguments
The President of the Florida Justice Reform Institute, William Large, supports the law. Before 1990, Florida’s rules for awarding damages in wrongful death cases were stricter, he said. Plaintiffs were not allowed to sue for “non-economic damages” or mental pain and suffering in cases of wrongful death, including medical malpractice.
The Florida House of Representatives in Tallahassee, Fla. Alex Wong/Newsmakers
The Florida legislature changed this rule and allowed pain and suffering in wrongful death litigation. However, parents with children over 25 or adult children over 25 with unmarried parents could not sue for pain and suffering in cases of medical malpractice. A car accident was treated differently than a negligent hospital death.
Mr. Large worries changing the law would negatively impact the state’s medical system.
“Imagine all the cases now that are going to be able to be brought for people who died. Adult children 25 and older that could now be brought. That’s going to be a tremendous cost driver for our health care system,” he said.
While Mr. Large contrasted “economic” and “non-economic” damages with wrongful deaths, the law bars adult children or parents of adult children from making any kind of medical malpractice lawsuits. The law prohibits these plaintiffs from making any medical malpractice suit, even purely “economic.”
Mr. Large created two charts that compare “non-economic” damages across all 50 states, including Washington, DC. While many states block plaintiffs from pursuing pain and suffering damages in wrongful death cases, most allow economic damages.
For example, Iowa approves medical malpractice cases from parents or adult children to recover “actual loss of services” after a family member suffers from a wrongful death.
In Washington, DC, pain and suffering damages are not recoverable, but a next of kin can sue for financial losses due to their family member’s medical malpractice death.
Florida is not alone in restricting “non-economic” damages with medical malpractice lawsuits, but the charts do not indicate if other states block all plaintiffs from pursuing strictly economic damages with medical malpractice wrongful deaths.
Injury law attorney Michael Hersh said the Florida Supreme Court made a ruling that questions the constitutionality and pragmatic value of Florida’s wrongful death distinction over age and marital status.
The Florida Supreme Court building in Tallahassee, Fla., on Jan. 22, 2023. Nanette Holt/the Epoch Times
He said the state-imposed caps on medical malpractice suit damages in the early 2000s to combat the rise of litigation and prevent physicians from leaving the state.
In Estate of McCall v. United States (2014), “the Florida Supreme Court using data that was provided to it … had found that all of the various concerns ... including premiums going too high, doctors leaving the state—that ultimately they weren’t valid. And despite the Florida Medical Malpractice Act being enacted, which imposed all sorts of limitations on a victim’s ability to recover, it didn’t reverse any,” Mr. Hersh said.
He added, “So they ultimately found that the justification for having medical malpractice cases being treated differently than every other type of plaintiff’s injury case, or wrongful death case. There was no real justification.”
Mr. Hersh believes this is evidence that Florida’s Wrongful Death Law violates the Constitution’s equal protection clause.
Mr. Large acknowledged the McCall verdict but said he is adamant Florida’s 2023 Supreme Court would reverse it.
He also criticizes the “free kill” name, calling it “slanderous” and arguing that medical facilities lack the time and resources to use a patient’s marital status and age of children in administering medical treatments.
Steve Parker, a personal injury attorney from Tampa, agrees for most patients, but for those who are in the hospital for weeks or months at a time, the reality could be complicated.
“I think in most cases, they’re not going to know if they’re allowed to do a ‘free kill.’ I mean, they’re not going to know, typically, in most cases, if somebody has a spouse, or somebody has minor children, some cases they will, because it’s a case where somebody’s in the hospital for two months. The same kind of thing—then under those types of circumstances—I can see it happening,” Mr. Parker said.
He also downplayed any negative economic impacts from changing the law.
“I don’t think you’re gonna have a landslide of claims. I mean, I get calls, maybe once a month, where they have no claim because there’s no spouse, and there’s no minor children, and a wrongful death, and [medical malpractice]. There’s not that many of them. So I don’t think it’s going to open up the floodgates to an unmanageable number of claims,” he said.
Sabrina Davis (R3) meets with state Rep. Yvonne Hinson (C) and others in Tallahassee, Fla. Courtesy of Sabrina Davis
State Rep. Mike Beltran (R) argued that medical malpractice claims are already difficult to bring forward in Florida.
“It’s extremely hard to bring medical malpractice claims on Florida … There are other areas of litigation where there may have been abuses or crises, or where lawsuits are contributing to excessive insurance premiums and so forth. But I don’t think medical malpractice is one of them,” he said.
Mr. Beltran added, “First of all, it’s a discrete area of law. And it’s a discrete subsection of the population because it’s not generally applicable, which is why it’s so unfair. It also means that the dollar amount, you’re not regulating all medical malpractice or all wrongful death, or you’re regulating such a narrow area,” he said.
Proposed Bills to Change the Law
Mr. Beltran is sponsoring HB-129, known as The Keith Davis Family Protection Act, with state Rep. Johanna López (D). It aims to repeal the age and marital requirements for making medical malpractice wrongful death suits.State Rep. Spencer Roach (R) is sponsoring HB-77, which removes the provision blocking parents of adult children from recovering certain damages from medical malpractice suits. This bill would cover Ms. Scheppler and her late son, Mr. Thompson.
State Sen. Jonathan Martin’s (R) SB-310 is the Senate companion of HB-77, also allowing parents of adult children to pursue certain damages from medical malpractice wrongful death.
Lastly, state Sen. Clay Yarborough (R) is sponsoring SB-248, which would follow HB-129 in repealing the age and marital status requirements from 768.21. However, AHCA and the Florida DOH would stipulate the extent of damages.
The four bills are headed to the Florida legislature in January 2024.
Ms. Davis also worries about tourists traveling to Florida who are unaware of the law.
“There’s one gentleman whose mom flew to Florida from California to have elective surgery. Well, she died after the surgeon messed up. And his family couldn’t do anything because she was in the category. So this affects even visitors. Once you cross that line, if you’re single and [have] no minor kids, you are fair game,” she said.
