A bipartisan effort is under way in the Florida Legislature to remove long-standing restrictions on the awarding of punitive damages in wrongful death cases involving medical negligence.
Rep. Mike Beltran (R-Zephyrhills) and Rep. Johanna Lopez (D-Orlando) have co-sponsored the Keith Davis Family Protection Act, also known as House Bill 129. The bill would change the current Florida law dealing with wrongful death litigation, which restricts damages for mental pain and suffering to minor children.
Florida is the only state that currently bars the awarding of punitive damages to a surviving spouse or minor children when someone 25 or older dies from medical negligence.
“Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may … recover for lost parental companionship, instruction and guidance and for mental pain and suffering from the date of injury,” the text of the bill states. “... Each parent of a deceased minor child may also recover 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.”
If passed by lawmakers and signed into law by the governor, the measure would take effect on July 1 of next year.
Florida’s restrictions on punitive damages in such medical malpractice cases date back to the 1990s, when they were passed as a way to stem rising malpractice insurance rates and encourage doctors not to leave the state.
Groups opposed to the measure say it could lead to increased damages awards and more civil litigation.
““The Florida Justice Reform Institute stands for fairness and personal responsibility, and opposes all legislation that seeks to expand litigation and place additional burdens on our court and medical liability systems,” William Large, the FJRI’s president, said in an email to the Florida Record.
The Florida Medical Rights Association, which has supported similar legislation in past years, said in a blog post that members of the Florida House of Representatives approved the bill twice in past sessions, but the state Senate has never considered the measure.
“Not only would all families have equal access to sue, but the offending party would be forced to correct their mistakes, pay for re-education and update faulty equipment as so ordered by a court of law,” the blog post states.
The Florida Chamber of Commerce has opposed similar measures during recent legislative sessions. In 2021, the chamber said such a reform “would further exacerbate Florida’s higher (medical malpractice insurance) rates, which act as a disincentive for medical professionals to continue providing care in Florida.”
Generally, Florida physicians pay medical malpractice insurance rates that are 20% to 50% higher than rates in other states, according to the Edgewood Partners Insurance Center. The rates vary depending on physician specialties.
The Florida Office of Insurance Regulation reports that medical malpractice premiums in the state are the fourth highest in the nation, based on 2020 data.
Supporters of changing the medical negligence law in Florida contend that all citizens should have equal access to litigation, as is the case for other types of negligence.