Medical Malpractice

April 17, 2024

Jeffrey P. Gale, P.A. // Proxy Republican Legislators Kill Efforts to Abolish Florida’s “Free Kill” Medical Malpractice Law

Since 1990, Florida has maintained a statute that has come to be commonly referred to as the “Free Kill” law. The statute, section 768.21(8), is located in the damages portion of the Wrongful Death Act.

The legislative intent of the Wrongful Death Act is set forth in section 768.17:

It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.

From motor vehicle crashes, construction accidents, defective products, and even medical negligence, wrongful death is caused in countless ways. The Wrongful Death Act allows the survivors of the decedent to recover from the wrongdoer once fault is established. Included within these remedies is the right to recover for mental pain and suffering. 768.21(8) is the exception to the rule.

Under 768.21(8), when a death is caused by medical negligence, mental pain and suffering damages (known as non-economic losses) are not recoverable by a parent for the loss of an adult child or by an adult child for the loss of a parent. 768.18(2) provides that a child 25 years of age or older is an adult child under the Act.

Yes, you read that right. Hence, the reason why 768.21(8) has come to be known as the “Free Kill” law.

January 28, 2024

Jeffrey P. Gale, P.A. // Abuse of Power

by Jeffrey P. Gale, P.A.

Republicans control all phases of lawmaking at the state level in Florida. This has been the case since the election of Jeb Bush as governor in 1998, complementing their majorities in the Florida House and Senate.

Presently, they rule by supermajority in the Legislature, meaning they don’t have to negotiate with members of other parties to pass legislation. With the encouragement of current governor Ron DeSantis, they have been wont to stoke the flames of culture wars by enacting draconian laws such as those banning books and hurting the LGBTQ community.

While their culture war laws get the headlines, Republicans also work in quieter ways to undermine the fabric of American society. One of their favorite tricks is to weaken the rights of individuals to seek redress within the legal system.

Last legislative session they passed bills reducing the statute of limitations in personal injury cases from four years to two years and barring all personal injury claims where the injured party is more than 50% at fault, even just 51% (768.81(6)).

This latter measure may appear reasonable on its face to the uninitiated, but it is not. In years past damage awards were apportioned by percentage of fault through a legal principle known as comparative fault. For example, if a person who was 51% at fault was awarded $1,000,000 in damages by a jury, the court would reduce that person’s share of the award to $490,000. Under the legislation passed in 2023, that same person would walk away with nothing even if another party was 49% at fault.

June 1, 2023

Jeffrey P. Gale, P.A. // Fundamentals Always Matter — Proximate Cause

by Jeffrey P. Gale, P.A.

In every negligence action for injuries or wrongful death the plaintiff must establish (1) a duty owed by the defendant; (2) the defendant’s breach of the duty; and (3) and that said breach proximately caused the damages claimed.

In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiff’s injury. See Tampa Electric Co. v. Jones, 138 Fla. 746, 190 So. 26 (1939); Greene v. Flewelling, 366 So.2d 777 (Fla. 2d DCA 1978), cert. denied, 374 So.2d 99 (Fla. 1979); Bryant v. Jax Liquors, 352 So.2d 542 (Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla. 1978). Prosser explored this standard of proof as follows:

On the issue of the fact of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

The north star of the law of causation is the landmark supreme court decision in Gooding v. University Hospital Building, Inc., 445 So. 2d 1015, 1020 (Fla. 1984). The Florida Supreme Court described the case as follows:

Emily Gooding, personal representative of Mr. Gooding’s estate, brought a wrongful death action against the hospital alleging negligence by the emergency room staff in not taking an adequate history, in failing to physically examine Mr. Gooding, and in not ordering the laboratory tests necessary to diagnose and treat Mr. Gooding’s abdominal aneurysm before he bled out and went into cardiac arrest. Mrs. Gooding’s expert witness, Dr. Charles Bailey, a cardiologist, testified that the inaction of the emergency room staff violated accepted medical standards [i.e., there was a breach]. Dr. Bailey, however, failed to testify that immediate diagnosis and surgery more likely than not would have enabled Mr. Gooding to survive.

The trial court denied the hospital’s motion for directed verdict on causation. The jury found the hospital liable and awarded damages. The hospital appealed. The First District Court of Appeal reversed on the grounds that the trial court should have directed a verdict in favor of the hospital because Mr. Gooding’s chances of survival under the best of conditions were no more than even. The plaintiff, therefore, could not meet the more likely than not test for causation. The Supreme Court affirmed the DCA on this holding.

August 22, 2021

Jeffrey P. Gale, P.A. // Health and Disability Insurance Reimbursement Rights in Florida Personal Injury Cases

by Jeffrey P. Gale, P.A.

It is common for health and disability (lost wages) insurance companies to pay benefits to their insureds who have been injured through the negligence of others. Most of the insurance policies contain language granting the insurance company a right of reimbursement for the money it has paid out from the proceeds recovered by the insured in the personal injury case for the same losses.

How much must be repaid depends on policy language and who is paying the settlement or judgment in the personal injury case.

Many of the insurance policies provide that the carrier has the right to be reimbursed in full up to the amount recovered in the liability case before the insured and the insured’s attorney receive penny one. When the compensation is paid by a tortfeasor, who is the person or entity responsible for causing the harm, reimbursement is determined by the formula set forth in section 768.76(4), Florida Statutes. The statutory formula applies even where the insurance policy calls for full reimbursement to the carrier first. In Ingenix v. Ham, 35 So.3d 949 (Fla. 2nd DCA 2010), Gerald Ham’s health insurer, UnitedHealthcare, paid almost all of Ham’s medical bills relating to a medical procedure that ultimately resulted in his death. After settling with the medical providers (i.e., tortfeasors) in a medical malpractice lawsuit, Ham’s estate contended that it was only required to reimburse UnitedHealthcare a reduced amount according to the formula set out in section 768.76(4), Florida Statutes (2008). UnitedHealthcare took the position that it was entitled to full reimbursement in accordance with the language of its policy. The court held that section 768.76(4) controlled, limiting UnitedHealthcare’s reimbursement to the formula under section 768.76(4).

July 6, 2021

Jeffrey P. Gale, P.A. // Ordinary Negligence vs. Medical Negligence (Malpractice)

by Jeffrey P. Gale, P.A.

The difficulties and limitations associated with medical negligence claims are many. The list includes:

Medical malpractice claims have a shorter statute of limitations than ordinary negligence claims — two years versus four years. See § 95.11(4)(b) and § 95.11(3)(a).
Prospective medical malpractice plaintiffs must comply with complex and costly presuit requirements, as set forth in chapter 766, Florida Statutes, before filing a medical malpractice suit, which includes conducting “an investigation to ascertain that there are reasonable grounds to believe” that medical malpractice occurred. Ordinary negligence claims do not have these requirements. Id. § 766.203(2); see generally id. § 766.201-.212.
The restrictions that chapter 766 places on medical malpractice plaintiffs’ ability to prove their cases persist even after a lawsuit is filed, such as providing specific qualifications for medical experts testifying as to the standard of care. See generally id. § 766.102.
Certain adult children (over the age of 25) whose parents die as a result of medical negligence are barred from recovering lost parental companionship, instruction, and guidance and for mental pain and suffering. See § 768.21(8). This restriction does not apply if the death results from ordinary negligence. See § 768.21(3).
Certain parents of adult children who die as a result of medical negligence are barred from recovering for mental pain and suffering. See § 768.21(8). This restriction does not apply if the death results from ordinary negligence. See § 768.21(4).

“Because of the statutory restrictions and requirements that apply only to medical malpractice claims, any ‘doubt’ as to whether a claim is for ordinary negligence or medical malpractice should be ‘generally resolved in favor of the claimant.”‘ J.B. v. Sacred Heart Hosp. of Pensacola, 635 So.2d 945, 947 (Fla. 1994).

July 4, 2021

Jeffrey P. Gale, P.A. // Florida’s Nursing Home Statute Provides Remedy to Some Barred by Florida’s Wrongful Death Act

by Jeffrey P. Gale, P.A.

I have railed at length in this blog against a Florida law that allows medical providers alone to avoid the same legal liability everyone else faces for causing the negligent loss of life. The offensive statute is section 768.21(8), Florida Statutes, which is part of Florida’s Wrongful Death Act.

Section 768.21, entitled “Damages,” describes who is entitled to what in wrongful death cases. Subparts (3) and (4) provide as follows:

(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.

(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury. Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors.

Where the wrongful death resulted from medical malpractice, subpart (8) bars the recovery of “lost parental companionship, instruction, and guidance and for mental pain and suffering” of “all children of the decedent if there is no surviving spouse.” as otherwise allowed in subpart (3), and “mental pain and suffering” for “[e]ach parent of an adult child … if there are not other survivors” as otherwise allowed in subpart (4). Subpart (8) provides as follows:

(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

(For purposes of this statute, an adult child is a child over the age of 25)

This simple paragraph has caused heartache upon heartache to a countless number of parents and children whose loved ones died from medical malpractice. Every week our office receives phone calls from disbelieving adult children and parents seeking a magical solution that doesn’t exist. Often, we are their fourth and fifth call. Sadly, the best we can offer are condolences and the suggestion they complain to Florida’s Governor and its state legislators. Not very comforting words.

January 9, 2021

Jeffrey P. Gale, P.A. // Time to Overturn Florida’s Medical Malpractice “Free Kill” Statute

by Jeffrey P. Gale, P.A.

Civil disputes arising from death due to negligence are governed by statutes 768.16-768.26, known as the “Florida Wrongful Death Act.” Section 768.17 sets forth the legislative intent of the Act:

“It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed.”

In all fairness, section 768.17 should read as follows:

“With the exception of cases involving medical negligence, it is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed.” (Language in bold added to make the point of this blog.)

Consider these scenarios:

Scenario No. 1:

Sixty five year old Tom was killed when his vehicle was struck from behind by a Coca Cola truck. Single, he is survived by two adult children over the age of 25. Tom’s children filed suit against Coca Cola and settled the case for a substantial sum of money. Most of the money was paid as compensation for their immense pain and suffering.

Sixty five year old Dick died on the operating table due to a surgeon’s negligence. Single, he is survived by two adult children over the age of 25. Because of an exception contained in Florida’s Wrongful Death Act, Dick’s children did not have a right to be compensated for their immense pain and suffering. The negligent surgeon was able to walk away scot free.

September 28, 2014

Florida Medical Malpractice Law: Exceptions to Non-Liability of Hospitals for the Medical Negligence of Independent Contractors

by Jeffrey P. Gale, P.A.

Most people are surprised to learn that most hospital emergency room physicians are not hospital employees. Instead, they are independent contractors.

“An independent contractor is a natural person, business, or corporation that provides goods or services to another entity under terms specified in a contract or within a verbal agreement. Unlike an employee, an independent contractor does not work regularly for an employer but works as and when required, during which time he or she may be subject to law of agency. Independent contractors are usually paid on a freelance basis. Contractors often work through a limited company or franchise, which they themselves own, or may work through an umbrella company.”

June 25, 2014

Setting the Record Straight on Medical Malpractice and Florida Law

by Jeffrey P. Gale, P.A.

Here is my Letter to the Editor, word for word, that was published by the Miami Herald on June 25, 2014:

WRONGFUL DEATH CAP

Re the June 19 letter DeGennaro the best person to lead Miami VA: While Barth Green may be a prominent South Florida doctor, he is hardly a legal scholar. While writing in support of Dr. Vincent DeGennaro, his “close friend and respected colleague,” he tries to bolster his argument by adding gratuitous debunked comments about doctors fleeing Florida because of its torts laws.

April 6, 2014

Gigantic Loophole in Florida’s Wrongful Death Act

by Jeffrey P. Gale, P.A.

In McCall v. United States of America, the Florida Supreme Court declared that the statutory cap on noneconomic damages in medical malpractice cases was unconstitutional. (In reaching this conclusion, the court determined that the numbers Governor Jeb Bush and his cronies presented to the Florida Legislature to demonstrate a medical malpractice crisis were cooked. In other words, the numbers were phony.)

As important and right as this decision is, a gigantic and dangerous wrong remains alive within the medical malpractice civil justice system.

Florida’s Wrongful Death Act is the civil law blueprint for addressing a wrong resulting in death caused by negligence. Section 768.21 Florida Statutes lays out who may be compensated for the loss of a loved one and by what measure. In all but one type of case where death has resulted from negligence, the children, no matter their ages, of a parent who has died without leaving behind a surviving spouse may recover from the wrongdoer for pain and suffering and the loss of the decedent’s companionship and protection. (See this blog for an easy to understand wrongful death survivors and damages chart.)

The one exception? For death caused by medical malpractice.
Continue reading