The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Judiciary
BILL: SB 248
INTRODUCER: Senator Yarborough and others
SUBJECT: Medical Negligence
DATE: January 18, 2024
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Bond Cibula JU Pre-meeting
2. AHS
3. RC
I. Summary:
SB 248 expands the application of the Florida Wrongful Act to allow certain parents and
children of a deceased patient who dies due to medical negligence to recover noneconomic
damages.
Under existing law, all of a decedent’s statutory survivors may recover some economic damages
for the loss of the decent. However, there is a tiered priority of classes of survivors who may
recover noneconomic damages, which notably includes damages for a survivor’s pain and
suffering, for the decedent’s wrongful death.
The highest class of survivors who may recover noneconomic damages consists of the decedent's
surviving spouse and surviving minor children. If the decedent is a minor child, the highest class
of survivors are the child’s parents. (Minors under the act are those younger than 25 years of
age.) The second class of survivors, consisting of the decedent’s adult and minor children, may
recover noneconomic damages, only if the decedent does not leave a surviving spouse. The third
and last class of survivors are the parents of a deceased adult child.
Under current law, only the highest class of survivors may recover noneconomic damages
regardless of the form of negligence which causes a decedent’s wrongful death. If a wrongful
death is caused by medical malpractice, the medical malpractice exception in the act precludes
the decedent’s adult children or parents of a deceased adult child from recovering damages for
their pain and suffering.
The bill addresses the medical malpractice exception by allowing the precluded individuals to
recover noneconomic damages against a health care practitioner if the Department of Health
finds probable cause that a practitioner committed malpractice. The bill also allows the precluded
individuals to recover damages against a health care facility if the facility is vicariously liable for
REVISED: BILL: SB 248 Page 2
the malpractice of a practitioner or the Agency for Health Care Administration finds that the
facility committed medical malpractice.
The bill deems the appropriate findings, allowing a medical malpractice action, to have been
made if the decedent’s personal representative files a complaint with the department or the
agency within 180 days after the decedent’s death and the department or the agency fails to
dismiss or resolve the complaint within 9 months after its submission. These administrate
disciplinary processes eliminate the need for plaintiffs to engage in the costly presuit screening
process that is otherwise required for bringing a medical negligence action under chapter 766,
F.S.
Finally, the bill provides that, in all wrongful death actions if a death is caused by medical
negligence, the negligent health care provider must reimburse the estate for medical bills paid
and must forgo collection of any outstanding balance.
The bill is effective July 1, 2024.
II. Present Situation:
Most of the state’s tort law is derived from the common law. At common law, there was no right
to recover for the negligent wrongful death of another person.
1
Over time, however, the
Legislature authorized recoveries for wrongful death and expanded the types of damages
recoverable and the classes of survivors entitled to recover. “Because wrongful death actions did
not exist at common law, all claims for wrongful death are created and limited by Florida's
Wrongful Death Act.”
2
History of Wrongful Death Actions
The early versions of the state’s wrongful death laws limited the right to recover damages to a
surviving spouse, to surviving children if there was no surviving spouse, and to those dependent
upon the decedent for support if there was no one belonging to the prior two classes, and finally
to the executor of the decedent’s estate if there was no one belonging from the prior three
classes.
3
To show dependence on the decedent, a claimant had to show that he or she was a
minor, physically or mentally disabled, or elderly.
4
Adults who were mentally and physically
capable of providing for themselves could not recover despite having been supported by the
decedent.
5
Any damages recoverable were limited to a form of economic damages.
The wrongful death law was substantially re-written in 1972.
6
That law created the Florida
Wrongful Death Act, which provides the framework for current law. One of the major changes
1
Louisville & Nashville Railroad Co. v. Jones, 45 Fla. 407, 416 (Fla. 1903).
2
Chinghina v. Racik, 647 So. 2d 289, 290 (Fla. 4
th
DCA 1994).
3
Duval v. Hunt, 34 Fla. 85 (Fla. 1894) (discussing a wrongful death statute enacted in 1883).
4
Id. at 101-102.
5
The Court interpreted the dependency requirement in the statute as requiring a person to have a genuine inability to support
himself or herself based on the view that strong, healthy adults who are capable of earning a livelihood should not be content
to “live in idleness upon the fruits of [another’s] labor.” Id. at 101.
6
Chapter 72-35, Laws of Fla. BILL: SB 248 Page 3
made by this law was to consolidate or merge survival and wrongful death actions.
7
A survival
action is a legal action allowed under the survival statute to continue notwithstanding the
plaintiff’s death. As merged, the 1972 law allowed the statutory survivors to recover damages for
their pain and suffering as a substitute for recoveries for the decedent’s pain and suffering under
the survival statute.
8
The type of damages that a survivor is entitled to, under the 1972 law, depends upon the
classification of the survivor. The 1972 law allows all survivors to recover the value of lost
support and services, a type of economic damages. A surviving spouse may also recover loss of
marital companionship and pain and suffering, types of noneconomic damages. Minor children,
then defined as under age 21
9
and unmarried, may also recover loss of parental companionship
and pain and suffering. The parents of a deceased minor child may also recover pain and
suffering. Any survivor who paid them may recover final medical, funeral, and burial expenses.
The estate of the decedent may recover lost earnings from date of injury to date of death, plus net
accumulations, which is essentially an estimate of the present value of the future estate that
would have been available for inheritance.
A 1981 act expanded the definition of “minor children” to include all children of the decedent
under age 25, regardless of whether such child is married or dependent.
10
The statutes did not
authorize a wrongful death action by a nondependent, adult child for the loss of a parent or an
action by a parent for the loss of an adult child.
11
In 1990, the Legislature generally expanded the class of survivors entitled to recover damages
for pain and suffering for a wrongful death.
12
As expanded, a decedent’s adult children may
recover damages for pain and suffering if there is no surviving spouse. The parents of an adult
decedent may also recover damages for pain and suffering if there is no surviving spouse or
surviving minor or adult children.
13
However, the same law that expanded the class entitled to recover damages for pain and
suffering for a wrongful death precluded the additional class members from recovering those
damages for a wrongful death based on medical malpractice.
14
Thus, a narrower group of
survivors may recover damages for pain and suffering for a wrongful death that is caused by
medical malpractice, and a broader group may recover damages for pain and suffering for death
that is caused by all other forms of negligence.
In a 2000 opinion, the Florida Supreme Court found the medical negligence exception
constitutional.
15
The Court found that the exception was rationally related to the need to control
7
Sheffield v. R.J. Reynolds Tobacco Co., 329 So. 3d 114, 121 (Fla. 2021).
8
Martin v. United Sec. Services, Inc., 314 So. 2d 765, 767 (Fla. 1975).
9
Florida changed the age of majority from 21 to 18 in the following year, but that act did not change the reference to age 21
in the wrongful death law. Section 743.07, F.S.; chapter 73-21, Laws of Florida.
10
Chapter 81-183, Laws of Fla.
11
Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040, 1042 (Fla. 2000).
12
Chapter 90-14, Laws of Fla.
13
Id. (amending s. 768.18(3) and (4), F.S.). The adult children were also authorized by the 1990 law to recover noneconomic
damages for lost parental companionship, instruction, and guidance.
14
Id. (amending s. 768.18(8), F.S.).
15
Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040, 1042 (Fla. 2000). BILL: SB 248 Page 4
the costs of health care and medical malpractice insurance due to a medical malpractice
insurance crisis. However, Justice Pariente, in her dissenting opinion, argued that the exception
should be found to be unconstitutional because of her belief that the medical malpractice
insurance crisis, which initially justified the exception, no longer existed.
16
The Florida Supreme
Court later found that the malpractice crisis is over,
17
but that finding did not overrule the ruling
that the medical negligence exceptions are constitutional.
18
Current Effect of the Medical Negligence Exceptions to the Wrongful Death Law
Currently, neither an adult (25+) child of an unmarried person who dies due to medical
negligence, nor the parents of an adult (25+) child who dies due to medical negligence, may
recover noneconomic damages (commonly referred to as "pain and suffering damages"). They
can recover through the estate economic damages such as net accumulations, final medical bills,
and funeral and burial expenses. Plaintiff’s attorneys report that these other damages are often
insufficient to warrant the cost and time required to prosecute a medical negligence case.
19
Medical Negligence Actions -- Presuit Requirements
Medical negligence claims are subject to statutory presuit screening and investigation
requirements.
20
A claimant may, and typically does, request the relevant medical records, which
must be furnished by the medical providers at a reasonable charge.
21
The claimant must then
conduct a reasonable investigation of the claim and obtain a written opinion from a medical
expert that malpractice occurred.
22
The claimant may then serve a notice of intent to initiate
litigation on every prospective defendant. The suit may not be filed until at least 90 days after
service of the notice.
23
During the 90 days, the parties must engage in pretrial discovery
24
and the
prospective defendant must conduct an investigation.
25
If not resolved in the 90 days, the
claimant may file suit. When filing the suit, the attorney must file a certificate that he or she has
reviewed the evidence and has a good faith belief that a medical negligence case is warranted.
26
Failure of the claimant to pursue the pretrial process constitutes grounds for a dismissal of the
claim. A failure of any party to the action to cooperate with the presuit process may be grounds
to strike any claim or defense raised by the non-cooperative party.
27
16
Id.
17
Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014). North Broward Hospital District v. Kalitan, 219 So. 3d 49
(Fla. 2017).
18
Santiago v. Rodriguez, 281 So. 3d 603 (Fla. 2nd DCA 2019), rev. dismissed, 2020 WL 927717 (Fla. 2020).
19
Fasig Brooks Law Offices, Unfair and Illogical: Florida’s Wrongful Death Medical Malpractice Law,
https://www.fasigbrooks.com/2019/02/unfair-and-illogical-floridas-wrongful-death-med/, last accessed Jan. 8, 2024 (stating
that “such limited recovery would not make a malpractice lawsuit financially feasible”).
20
Sections 766.104, 766.106 and 766.203, F.S.
21
Sections 766.104(3) and 766.204, F.S.
22
Sections 766.104(1) and 766.203(2), F.S.
23
Section 766.106(4), F.S.
24
Section 766.106(6) and 766.205, F.S.
25
Section 766.203(3), F.S.
26
Section 766.104(1), F.S.
27
Section 766.106(7), F.S. BILL: SB 248 Page 5
Regulation and Discipline of Medical Professionals and Medical Facilities
Medical professionals are regulated by a comprehensive regulatory system through the
Department of Health. Discipline guidelines vary between practice areas. For example, there are
49 grounds for discipline of a physician, including the commission of malpractice
28
or
performing professional responsibilities that the physician knows that he is she is not competent
to perform.
29
A complaint against a physician is first referred to the department to conduct an
investigation.
30
This investigation should generally be completed within 6 months.
31
If the investigation finds that an offense may have occurred, the matter is referred to a probable
cause panel
32
appointed by the Board of Medicine.
33
The panel must make its determination of
probable cause within 30 days after it receives the department’s final investigative report unless
grounds for extensions apply.
34
If the probable cause panel finds that probable cause exists that
an offense has occurred, the complaint is referred to the full board for consideration of the
appropriate discipline.
35
Similar provisions for investigation by the department, referral to a
probable cause panel, and discipline by the licensing board of other licensed medical providers
apply.
36
Health care facilities are licensed and disciplined by the state through the Agency for Health
Care Administration.
37
A health care facility may be disciplined or have its license revoked for
various grounds, including commission of a negligent act materially affecting the health or safety
of a client.
38
A disciplinary case may be commenced by the filing of a complaint with the
agency.
39
If the agency has authority over the subject of the complaint, it will be referred to the
Complaint Administration Unit, which may conduct an investigation.
40
The investigation may
lead to the filing of an administrative complaint and the imposition of disciplinary sanctions if a
violation is found.
41
There is no probable cause finding required, and no statutory time limit for
completion of the investigation stage or final resolution of a complaint.
Billing and Payment of Medical Bills
In general, medical bills are governed by the general laws of contract. A patient is deemed to
have entered into a contract with the medical providers and medical facilities whereby the
providers and facilities provide goods and services and the patient owes them for the reasonable
value of such goods and services.
28
Section 458.331(1)(t), F.S.
29
Section 458.331(1)(v), F.S.
30
Sections 458.311(7) and 456.073(1), F.S.
31
Section 456.073(2), F.S.
32
Section 458.311(4), F.S.
33
Section 458.307, F.S.
34
Section 456.073(4), F.S.
35
Sections 456.311(4) and 458.331(2)-(8), F.S.
36
See generally, ch. 456, F.S.
37
See generally, part II of ch. 408, F.S.
38
Section 408.815(1)(b), F.S.
39
https://ahca.myflorida.com/contact-ahca/filing-a-complaint.
40
Id.
41
See generally, s. 408.813, F.S. BILL: SB 248 Page 6
The estate of a person who died due to medical negligence may recover medical or funeral
expenses due to the decedent’s injury or death that have become a charge against the decedent’s
estate or were paid by or on behalf of the decedent by someone other than a survivor.
42
However,
one might interpret the "due to" phrase to only include medical services resulting from the
negligence. This interpretation would exclude the medical bills for the negligently-provided
treatment or procedure.
III. Effect of Proposed Changes:
The bill changes the two medical malpractice exceptions in the Wrongful Death Act to allow
actions to recover noneconomic damages if the Department of Health or the Agency for Health
Care Administration finds that, or finds probable cause to believe that, the facility or practitioner
breached the prevailing standard of care in causing the death. If this finding is made, the plaintiff
is not required to participate in the presuit investigation and discovery normally required in a
medical negligence action. If the personal representative of the decedent’s estate files a
complaint alleging medical negligence with the department or the agency within 180 days after
the decedent’s death and the department or agency does not adjudicate the complaint within 9
months after receipt, the appropriate findings authorizing a medical negligence action are
deemed to have been made.
The bill also provides that, in all wrongful death actions where the death was caused by medical
negligence, the negligent health care provider must reimburse the estate for medical bills related
to the care or treatment that was negligently provided, and must forgo collection of any
outstanding balance related to the treatment or care.
The bill takes effect July 1, 2024.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
The bill does not require counties or municipalities to spend funds or limit their authority
to raise revenue or receive state-shared revenues as specified in Article VII, s. 18 of the
Florida Constitution.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
42
Section 768.21(6)(b), F.S. BILL: SB 248 Page 7
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None identified.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The bill may provide for wrongful death recoveries by parties that are barred by current
law, and may correspondingly increase medical malpractice insurance premiums or
medical malpractice self-insurance costs of medical providers. Similarly, the availability
of damages for mental pain and suffering may provide a sufficient incentive for plaintiff
attorneys who work on a contingency-fee-basis to pursue more medical negligence
lawsuits.
C. Government Sector Impact:
The bill may create an indeterminate negative fiscal impact on the state and local
governments to the extent that the state or a local government operates or controls a
medical care facility. Any such claims, however, would be limited by the state’s
sovereign immunity limits.
43
The bill will likely increase the workload of the state courts
system.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section 768.21 of the Florida Statutes.
43
Section 768.28, F.S. BILL: SB 248 Page 8
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.