Victims’ Advocates Continue to Call for Change to Florida’s Medical Malpractice Compensation Law

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Posted: October 16, 2019

Every year the state of Florida sees thousands of operations and other medical procedures and services performed within its borders. Usually, everything goes well. But when medical professionals make a mistake, people’s lives can be put in jeopardy. The state’s medical malpractice laws allow for the loved ones of those who have died due to medical malpractice to sue for compensation. But a loophole in the law effectively prevents recovery for the medical malpractice related deaths of single adults with no minor children.

On Sunday, HeraldTribune.com profiled Shirley Giannillo. In August her son Gerald, a massage therapist, went to Sarasota Memorial Hospital to have a surgery which was meant to fix an aneurysm and leaking heart valve. Eighteen days later Gerald was dead.

The article says that officials at Sarasota Memorial Hospital said that the surgery had been successful, but “despite their best efforts to restore full function to his heart, one section of his left ventricle did not respond to further treatment.” The officials had consulted with other cardiac surgeons, including those at Columbia University Medical Center, and then transferred Gerald to Tampa General. He died there two weeks later. 

Distraught, Shirley Giannillo wanted to investigate the death of her son, and contacted an attorney for assistance. Shirley was surprised to learn that a Florida law, known as the Florida’s Wrongful Death Act, contains an exemption which would prevent her from recovering for her son’s death, even if the investigation indicated that the surgeons had been at fault. 

Florida Statute Section 768.21(8) says “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).” This has been derisively called the “The Florida “Free Kill” law,” due to its inhibiting effect on compensatory lawsuits in such cases. 

Shirley Giannillo insists that her main purpose for filing the suit would have been to get to the bottom of what happened to her son, not for the monetary benefit. 

The statute was enacted several decades ago, ostensibly as a way to attract more doctors to Florida and lower medical costs. But opponents argue that the provision has not helped to slow the rising cost of medical care, and has only served to prevent some families, such as the Giannillos, from seeking justice.