Searches around Florida’s controversial “free kill” law began trending after Florida surgeon Dr. Thomas Shaknovsky allegedly removed a patient’s liver instead of their spleen during a hand-assisted laparoscopic splenectomy procedure in August, ultimately leading to the patient’s death.
Section 768.21 in Florida Statutes, which is dubbed the “free kill” law, essentially prohibits adult children and other surviving family from filing malpractice lawsuits against doctors or hospitals.
When it was originally passed, the law was meant to curb “junk lawsuits” from clogging up legal pipelines and prevent the rise of health care costs. However, there is no evidence that the legislation has had any impact on the cost of health care in Florida, according to Palmer Lopez.
Could Florida’s “free kill” law block legal recourse in a potential lawsuit against Shaknovsky? Nope, here’s why.
What happened during the surgery?
William “Bill” Bryan, 70, and his wife, Beverly, of Muscle Shoals, Alabama, were visiting their condo in Destin, Florida, in late August when Bryan began to notice pains on the left side of his body.
Bryan was admitted to Ascension Sacred Heart Emerald Coast Hospital in Miramar Beach, where Shaknovsky recommended that he undergo a splenectomy, a procedure where the spleen is removed after imaging studies showed potential abnormal growth on his spleen.
According to medical records provided byZarzaur Law to USA Today, Bryan underwent a hand-assisted laparoscopic splenectomy procedure on Aug. 21. During the procedure, Shaknovsky removed Bryan’s liver and, in so doing, transected (cut) the major vasculature supplying the liver, causing immediate and catastrophic blood loss that resulted in Bryan’s death.
Shaknovsky labeled the removed liver specimen as a “spleen” during the operation, according to the medical records.
After the procedure, Shaknovsky told nurse Beverly Bryan the “spleen” was so diseased that it was four times bigger than usual and had “migrated” to the other side of Bill Bryan’s body.
The medical examiner determined Bill Bryan's liver was gone, and his spleen was still in his body with a cyst attached to it, the attorney said.
What is Florida’s ‘free kill’ law?
Florida’s “free kill” law is a provision in Section 768.21 in Florida Statutes that prohibits adult children and other surviving family from filing medical malpractice lawsuits against doctors or hospitals when the victim is 25 years old or older.
Only surviving spouses and minor children can file medical malpractice claims under the current law. Florida is the only state whose wrongful death laws differentiate medical malpractice from other types of wrongful death.
Here’s the provision’s text:
(8) 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).
Does Florida’s ‘free kill’ law apply against Dr. Shaknovsky?
In the event that Bryan’s wife decides to seek a malpractice lawsuit against Shaknovsky, Florida’s “free kill” law would allow it.
Florida Statute 768.21(2) explicitly states that the surviving spouse can “recover for loss of companionship and for mental pain and suffering from the date of the injury.”
How often is the wrong body part removed during surgery?
According to an article by Johns Hopkins Medicine inScienceDaily, "never events" occur4,044 times a year in the United States.
"Never events" were defined as those "occurrences for which there is universal professional agreement that they should never happen during surgery."
"After a cautious and rigorous analysis of national malpractice claims, Johns Hopkins patient safety researchers estimate that a surgeon in the United States leaves a foreign object such as a sponge or a towel inside a patient's body after an operation 39 times a week, performs the wrong procedure on a patient 20 times a week and operates on the wrong body site 20 times a week," the study said.
"The researchers, reporting online in the journal"Surgery," said they estimate 80,000 of these so-called 'never events' occurred in American hospitals between 1990 and 2010 — and believe their estimates are likely on the low side."
"The events we've estimated are totally preventable. This study highlights that we are nowhere near where we should be and there's a lot of work to be done," said study leader Marty Makary, M.D., M.P.H., an associate professor of surgery at the Johns Hopkins University School of Medicine.
Will Dr. Thomas Shaknovsky be held criminally or civilly liable?
Under Florida law, a six- to nine-month pre-suit process must take place before filing a formal medical malpractice lawsuit with the court, Zarzaur said. Bryan's family and Zarzaur do intend to file a lawsuit, he said.
The medical board could take months to revoke Shaknovsky's medical license, according to Zarzaur.
A criminal investigation is also underway concerning Bill Bryan's death.
The Walton County Sheriff's Office emailed a statement to USA TODAY, saying:
"Walton County Sheriff's Office, in conjunction with the District 1 Medical Examiner's Office and Office of the State Attorney, is reviewing the facts involving the death of William Bryan to determine if anything criminal took place.
"At this time, it would be incorrect to say criminal charges have been filed."
