A loophole in Florida’s Wrongful Death Act
By Carrie Seidman
Updated Oct 13, 2019 at 12:40 PM
On Aug. 2, less than a month after his 51st birthday, Gerald Giannillo, a longtime and much-loved massage therapist at the Longboat Key Club, checked in at Sarasota Memorial Hospital for surgery to repair an aneurysm and leaking heart valve caused by a hereditary condition.
Eighteen days later, at Tampa General Hospital, where he had been transferred by helicopter four days after the delicate surgery, he was removed from life support.
Shirley Giannillo of Sarasota is still looking for answers as to why her son, Gerald Giannillo, died after a heart value repair surgery in August. [HERALD-TRIBUNE STAFF PHONE/DAN WAGNER]
There is no clarity on whether any mistakes were made in Giannillo’s procedure. Sarasota Memorial officials say he was at a high risk for an aortic tear, which would likely have brought life-threatening bleeding. They say surgeons repaired his aneurysm and preserved his heart valve, but despite their best efforts to restore full function to his heart, one section of his left ventricle did not respond to further treatment.
After consulting with cardiac surgeons at Columbia University Medical Center and transplant surgeons in Tampa, Giannillo was transferred to Tampa General, Sarasota Memorial says. He died on Aug. 20 without ever having regained consciousness or stabilized sufficiently to be placed on a heart transplant list.
For Giannillo’s family and Tracey, his girlfriend of 24 years (who asked that her last name not be disclosed,) haunting questions remain about what went wrong.
As hope for placing her son on the transplant list expired, Shirley Giannillo, acting on the advice of a relative, contacted a lawyer. The family wanted to explore the possibility of initiating an independent investigation into the circumstances of Giannillo’s care and death. But even before she’d finished explaining her situation, the attorney cut her off.
Because of a little-known exemption in Florida’s Wrongful Death Act, neither she nor the next of kin of anyone who was over the age of 25, unmarried and without minor children, was entitled to file a medical malpractice suit.
“Florida law is not on your side,” she was told. “You have no legal recourse.’”
The ‘free kill’ exemption
Florida’s Wrongful Death Act — Section 768.21(8) Florida Statute — is the state’s legal blueprint for redressing a death caused by negligence. It provides guidelines for who can bring a medical facility or a health care provider to court in the event of a suspected wrongful death, and by what measure they can be compensated.
But an exemption within the law prevents the remaining next of kin of any adult child (in Florida, anyone age 25 or older) who has no spouse or minor children, or the adult children of a parent who has no spouse, from recovering damages for pain and suffering after a wrongful death in a medical setting.
In other words, in cases where medical negligence is suspected, only a spouse or a minor child may file a wrongful death grievance in a court of law.
The provision is known in the vernacular by a term that many in the health care and insurance industries find offensive: The Florida “Free Kill” law. Since the exemption means there is no threat of monetary punishment for lax or incompetent treatment in these cases, a dead patient represents no financial liability, whereas a severely harmed patient who survives could mean significant liability exposure. Thus the label “free kill.”
Florida is the only state in the nation with such an exclusion. Given the state’s high population of widowed seniors, unmarried college students and middle-aged single and divorced individuals whose children are over 25, it is estimated more than half the state’s population falls into the “free kill” category.
‘Every life matters’
At first, Shirley Giannillo and her relatives found the attorney’s explanation hard to fathom; surely he must be mistaken, they thought. But after she and other family members called several other personal injury attorneys and got the exact same response, they realized it must be true. No attorney was going to take a case in which no economic damages could be recovered.
“After you talk to three of them, you have to go, ‘OK, this is the law,’” she said. “They don’t want to look into it because there’s no money in it for them. Nobody will take it on.”
Giannillo, a 71-year-old hairstylist who lost her husband to cancer seven years ago and her only other child to lymphoma 20 years ago, says her motivation in contacting a lawyer was never about seeking money or retaliation. She simply wanted to have someone who was not connected with the hospital conduct an unbiased review of her son’s care. She has since sent a letter to the Florida Board of Medicine, requesting an investigation.
“I don’t want to ruin anyone’s reputation, but if something was done wrong, someone should be held responsible,” she said. “I’m sure they are being as truthful as they can be. But we were interested in looking for an independent person outside the hospital to look into this.”
Tracey said she and Giannillo had talked about marrying many times, including shortly before his surgery. If they’d known about the wrongful death exemption, they would surely have done so before he went ahead with the operation, she said.
An intensely private person, she has no desire to draw more attention to herself or her tragic situation. Nevertheless, as she grapples with her loss and struggles to find a way to face each day, she believes it is important to bring attention to a law she considers unjust and to advocate for its change.
Not because it will provide her with the answers she longs for, but because “every life matters.”
A question of constitutionality
The Wrongful Death statute evolved from medical malpractice tort reforms of the late ’80s and early ’90s, prior to which there were limitations on who could bring any kind of negligence lawsuit for damages.
In 1990, the Legislature altered a statute to add the ability of adult children and parents of an adult child to bring wrongful death lawsuits in non-medical negligence cases — a right they had not previously enjoyed. But while that meant they could file suit if, for example, their loved one was hit by a drunk driver while crossing the street, the statute specifically excluded medical malpractice lawsuits.
Florida legislators felt that by protecting medical providers from a plethora of malpractice suits and escalating liability insurance rates, it would encourage more physicians to practice in the state and lower the cost of health care by reducing malpractice premiums.
Opponents argue that neither of those benefits have accrued and that the exemption has done, in fact, done more harm than good. Instead of attracting the best doctors, they say, Florida has lured physicians who’ve experienced malpractice suits elsewhere or had their licenses stripped in other states. They point to the fact that malpractice insurance and health care costs have also continued to steadily climb, despite the exemption.
Moreover, they claim the law has also robbed the Medicaid and Medicare systems, which are not paid back for the health care services they covered in cases where no lawsuit can substantiate negligence.
The constitutionality of the law also has been challenged. In a 2000 case, Mizrahi v. North Miami Medical Center, the surviving adult children of Morris Mizrahi charged that they had not been afforded equal protection under the law by being prevented from filing a medical negligence suit.
Nevertheless, the Florida Supreme Court upheld the exclusion as constitutional, stating “the statute’s disparate treatment of medical malpractice wrongful deaths does bear a rational relationship to the legitimate state interest of ensuring the accessibility of medical care to Florida residents by curtailing the skyrocketing medical malpractice insurance premiums in Florida.”
William Large, president of the Florida Justice Reform Institute, said he believes the danger in trying to get rid of the exemption could potentially be more detrimental than allowing it to stand.
“I think the current law shouldn’t be changed,” Large said. “If a stakeholder group attempts to tinker with the medical malpractice subsection, I suspect the Legislature actually might repeal the 1990 amendments that adult children and parents of an adult child can sue for wrongful death in a non-medical malpractice context.”
Seeking equal protection
But others don’t share his perspective.
Melody Page founded the Florida Medical Rights Association with Debbie Sowden in 2017 after both women experienced medical tragedies they say cost the lives of their fathers. Incredulity is a common response when people learn about the exemption, says Page, who in her spare time runs the FMRA, a registered nonprofit advocating to eliminate the exclusion.
“A lot of times, people just don’t believe you,” said Page, who lives in Lake Worth, near West Palm Beach. “When I say the hospital killed my dad and I can’t sue, people say to me, ‘Oh, that can’t be true. You mean you can’t sue because it’s hard to prove.’ No, I can’t sue because I’m 47 and single.”
Page’s father suffered a “complicated grief” breakdown after his wife died unexpectedly from influenza one night in November 2016. Emotionally distraught, he was Baker Acted to a hospital, where he was administered heavy doses of sedatives. Within three days, he was dead from what Page believes was an overdose of overlapping medications.
“I lost them both in a four-day period,” says Page, who is not married and who has a daughter who will turn 25 next year, meaning she will soon fall into the exclusionary category herself. “We had a double funeral. And it changed my life.”
Since founding the FMRA, she has heard from dozens of families who have also lost loved ones to suspected negligence, only to discover they had no legal recourse. Among them: A woman whose 25-year-old son, recovered from a drug overdose, died sitting next to her in a hospital discharge lounge, after a nurse removed a PIC line inappropriately, and a father whose adult son bled out after a scope threaded up his leg inadvertently pierced a femoral artery. A page on the FMRA website (floridamedicalrights.org) is devoted to pictures of victims.
“I know a lot of people want to change this law because they want vengeance,” Page said. “But you can’t sue backwards. I’m not doing this for the money. We’re doing this because we want to insure patient safety, increase medical accountability and protect our constitutional rights.”
Page said she believes the medical malpractice exemption is not only blatantly inequitable but unconstitutional under the principle of “equal protection under the law.” A growing number of Florida residents — at least those who are aware of the exemption at all — agree with her. She has gathered tens of thousands of petition signatures and forwarded hundreds of letters to Florida Senate and House members requesting the law be amended.
But as she discovered last year, going up against those invested in keeping the exemption in place — primarily insurance companies and health care institutions — is no easy mission.
Proposed amendment fails
Last February, Page was in attendance when an amendment that would have removed the exemption made it to the Florida House Civil Justice Committee. Proposed by Representative Amy Mercado and attached to a tort reform bill seeking to add additional caps to Florida medical malpractice cases, it drew support from several representatives, from both sides of the aisle. Nevertheless, it was shelved after a voice vote called by Civil Justice Committee Chair Bob Rommel, D-Naples.
“This is a fine example of ageism and prejudice against the family unit itself,” said Page, who blogged about the rejection on FMRA website. “It was clearly put in place with the intent for insurance companies to save money — but at the cost of devaluing human life.”
The Florida Medical Association, the Florida Hospital Association and medical malpractice insurers — all of whom were instrumental in getting the exemption carved out in the first place — would face escalating costs if the provision were eliminated. And they wield plenty of power.
Page has yet to find a legislator with sufficient political clout and the will to champion the change.
“What a lot of them say is, ‘I’m not the right person, but if you can get this on a bill, I’ll vote for it,’” says Page of the legislators she’s contacted. “They’re afraid to be on the forefront of it, because these insurance companies are so powerful. But I fully plan on identifying those who are trying to keep it in place.
“And if we can just raise awareness among the public, maybe that’s what will help this be changed.”
Sign a petition at: floridamedicalrights.org/petitions-fmra
Sign a letter to legislators at: floridamedicalrights.org/sign-letter-to-legislators