Thoughts/Challenges on "Free Kill" Medical Errors

Many organizations and professionals who read this e-newsletter have a presence in states with limits on non-economic or "pain & suffering" damages in medical malpractice cases. A cap on non-economic damages can often make cases involving the death of children, the elderly, and stay-at-home moms financially unfeasible to pursue. Patient safety advocates and plaintiffs' lawyers coin such cases "free kills," whereby errant medical professionals face no risk of financial liability (even though they often endure an enormous emotional toll which no one speaks about).  The State of Florida has a unique twist on the concept of free kill, whereby if a patient over the age of 25 years old dies of alleged medical errors but has no direct dependents (minor children, stay-at-home spouse, etc) a lawsuit cannot proceed.  Parents of adult children who perish or adult children of single parents who perish have no avenue for civil litigation in the Sunshine State.  Florida legislators recently considered a proposal to amend their law, but the legislation was bottled up in committee at the bequest of the medical and business communities.  

Several thoughts for the Sorry Works! audience...

My brother Jim's case -- which launched Sorry Works! -- would not have seen the light of day had Ohio had a similar law as Florida or a cap in place at the time of his death.  At the time of his death, Jim was single and had no dependent children.  My parents would have been powerless to do anything.  Yet, my mother to this day says if the hospital and doctors had only apologized and been transparent, including sharing patient safety fixes following Jim's death, she and dad never would have sued. Unfortunately, the hospital stonewalled and litigation was the only the way to get answers or justice.  In the course of my work over the last 17+ years I have heard my mom's words echoed by countless families, including in cases with economic damages.  

These so-called "free kill" cases -- adults with no dependents, children, the elderly, and stay-at-home spouses -- can provide a powerful lesson for healthcare professionals and a chance to significantly change the culture of medicine.  Think about it...at their core these cases are NOT about money.  The patient is dead.  There will be no bills (rehab, additional surgeries, life care plans, etc) going forward. And no one was depending on the deceased to pay mortgages, grocery bills, and save for college tuition.  In these instances, the major needs for most families are often answers, accountability, and to see how healthcare will learn from the deaths of their loved ones. This emotional stuff is gold to families and if often necessary for families to complete the grieving process and achieve a new normal. 

My plea for your organization is to not walk away from these "free kill" cases.  Instead, run to them, take care of hurting families and your clinical staff, and learn.  Indeed, your disclosure program should be all over these cases.  Your hospital can legally ignore these cases, but that doesn't make it right for anyone, including your staff. 

Sorry Works! can help train your leadership and clinical staff on disclosure principles.  Call 618-559-8168 or email doug@sorryworks.net for more information.

Sincerely,

- Doug

Doug Wojcieszak, Founder and President
Sorry Works!
618-559-8168 (direct dial)
doug@sorryworks.net