Push to repeal Fla. law restricting who can sue following medical malpractice faces another uphill battle at the Capitol

Florida Statute 768.21 Section 8 limits who can file a wrongful death lawsuit following a death due to medical malpractice.
Published: Jan. 25, 2022 at 9:20 PM EST|Updated: Jan. 26, 2022 at 9:17 AM EST
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TALLAHASSEE, Fla. (WCTV) - A law many Floridians aren’t familiar with is once again in the crosshairs at the Capitol. And once again, prospects remain uncertain if it’ll be scrubbed from the books.

Florida Statute 768.21 Section 8 limits who can file a wrongful death lawsuit following a death due to medical malpractice.

If the deceased was over the age of 25, has no living spouse, and no kids under 25, state law makes it impossible to seek non-economic damages. It’s been that way for decades.

Gainesville resident Sabrina Davis found out the hard way, following the tragic death of her father.

“This was 100 percent preventable,” she said.

62-year-old Keith Davis checked in to a hospital in Hillsborough County in October 2020 for leg pain. He wouldn’t leave the facility alive.

Davis said her father had a history of deep vein thrombosis and had used blood thinners in the past. Instead, she said doctors never ordered an ultrasound, prescribed thinners, or ever suspected a blood clot.

After several days at the hospital, her father stood up and almost instantly died.

“I’m upset. I’m still hurting,” she said.

“And to explain this to my child, how his grandpa went in for knee pain and now he’s in a bag of ashes in my dining room, it’s an extremely hard thing to explain.”

This week, the state found the doctor at fault in the death, according to documents she shared with WCTV.

The hospital, now known as HCA Florida Brandon Hospital, shared their condolences in a statement to WCTV.

“The death of a loved one is always very difficult, and our hearts go out to this family. We are committed to providing high quality care to our patients and rely on physicians to make medical decisions based on their expertise and each patient’s unique healthcare needs.”

HCA Florida Brandon Hospital

Davis knows she won’t find salvation in the courts.

It’s a hard truth known well by Tallahassee attorney Dana Brooks, who handles wrongful death cases at her law firm Fasig Brooks.

“It’s heartbreaking to tell so many people no when they contact us to see if anything can be done,” she said.

Brooks guessed she has to explain the tricky law to families five to ten times a month. She said she doesn’t see lawmakers repealing the law any time soon.

“They’re going to pay attention to the people with the biggest, loudest voices, and those are usually not victims,” she said.

Still, the push for reform continues.

Davis joined others at the Capitol recently to advocate for several sponsored bills that would accomplish their goals.

The group carried homemade signs, some with pictures of those lost to malpractice. Other signs included typed stories- each telling of a heartbreaking loss.

They’re trying to persuade lawmakers. But so far, their bills have not been heard.

“We’re up against a huge community that wants to keep this law in place,” Davis said.

Brooks argues insurance companies are the most to blame, leaving business advocates and doctors caught up in the middle.

The Florida Chamber of Commerce has opposed removing the law in the past. Last year, the chamber sent an email to lawmakers asking them to vote against the 2021 version of the bill, according to an email sent to a representative and shared with WCTV.

The email threatened to lower legislative grades if lawmakers voted for the bill.

In a statement to WCTV, the Senior Director of Business Economic Development and Innovation Policy Carolyn Johnson wrote the following:

“Florida already has a bottom five legal climate, some of the highest medical malpractice insurance rates in the country, and like many other places, a healthcare staffing shortage. The Florida Chamber supports reforms to encourage a more competitive legal climate and improve access to an affordable quality health care system.”

Florida Chamber of Commerce

Brooks said she doesn’t buy the argument that the law helps keep malpractice insurance rates down. She argues insurance companies often inflate rates themselves, and have enjoyed a windfall of low payouts for years.

As for Davis, her loss now fuels a fight for change.

“When someone dies of medical negligence, accountability is non-negotiable,” Davis said.

And while a 2021 bill passed the house before falling out of contention, it remains to be seen if 2022 will see a reverse in fortune.

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