A Better Way Forward in 2025
To the Senators and Representatives of the Florida Legislature:
For the past 159 years, America has been grappling with the issue of civil rights. As a Nation, we have waged war over it, codified it in the 1866 Civil Rights Act, amended our Constitution in 1868, and reaffirmed it time and again in 1871, 1875, 1957, 1960, and 1964. Yet here we are, well into the 21st century, still addressing the issue of class-based discrimination. The injured parties may have changed, but the injury remains the same: due process and equal protection under the law.
Where once the government had to step in to protect a particular class of citizens from the oppressive actions of others, we now find ourselves in an era where corporate and special interests wield their influence to deny justice to the people. Laws enacted to protect the rights of the people have instead become tools of exclusion, shielding powerful industries from accountability. One such law, Florida Statute §768.21(8), exemplifies how systemic injustice persists—not through an outright denial of the right to access the courts, but through the calculated erosion of legal recourse. The government owes a duty to the people to protect their rights, not to serve as a gatekeeper for those who would evade responsibility.
At its core, FS §768.21(8) accomplishes two things. First, it creates two distinct classes of citizens. The first class is the licensed medical professional and the hospital corporations, who are shielded from noneconomic damage awards when negligence occurs. The second class of citizens created by Subsection 8 are those adult citizens who have lost an unmarried adult child or parent due to medical negligence. The law strips this class of citizens of their right to seek a remedy through the civil courts. Though not directly denying their Constitutionally protected right to access the civil courts, it accomplishes the same end by denying them the ability to be awarded noneconomic damages.
This law stands as an abhorrent and glaring example of government-sanctioned discrimination, creating an underclass of victims whose suffering is dismissed not due to any lack of merit but simply because they do not fit within an arbitrary legal category. It is a law that tells grieving families that their loss is unworthy of remedy, that their loved one’s life was legally expendable, and that the medical and insurance industries—protected by powerful lobbying interests—must be shielded from the consequences of their negligence.
The implications of this law go beyond the immediate families it affects. It erodes public trust in the justice system, conveying that some lives matter less than others under Florida law. It weakens the deterrent function of civil liability, allowing dangerous medical practices to persist without fear of consequence. It places corporate profit over human life, elevating the financial interests of insurers, doctors, and hospitals above the fundamental principle of equal justice under the law. Most disturbingly, it allows the negligent healthcare worker to remain unchecked at the bedside. The law provides a false sense of righteousness for the negligent party, confirming their belief that they have done nothing wrong because the State has provided them with a shield against accountability.
Subsection 8 is not just a legal flaw—it is a moral failing. A society that values justice cannot stand idly by while a segment of its people is denied access to the courts. The (S)tate of Florida has allowed this injustice to continue for over three decades despite overwhelming evidence of the harm it causes. Families who have lost their loved ones to medical negligence deserve their day in court, just as any other victim of wrongful death would receive. The (S)tate must not continue to act as an enabler of corporate immunity at the expense of the people's rights.
However, repealing FS §768.21(8) is not the final step; it is merely the first. Restoring these families' right to seek justice is only the beginning of addressing the more profound, systemic problem: the crisis of medical malpractice itself. Thousands of individuals lose their lives each year due to preventable errors, misdiagnoses, surgical mistakes, and systemic failures in patient care. Fixing the legal framework is necessary, but it does not resolve the broader crisis in medical accountability and patient safety.
As we move forward, it is imperative that we restore access to the courts and rethink how medical malpractice should be addressed. A purely adversarial system—where victims must rely on litigation alone—has failed both patients and providers. A systems-based approach, such as the Michigan Model, offers a more effective alternative. By prioritizing transparency, accountability, and patient safety improvements, we can build a model that compensates victims fairly and prevents future harm through systemic reforms.
The first step is justice. The next step is meaningful reform. The people of Florida deserve both.
Wilder’s Law of Initial Value (LIV)
The connection between Wilder’s Law of Initial Value (LIV) and the Systems Error Approach/Michigan Model in the fight against FS §768.21(8) follows the same logic:
Step 1: LIV and Systems-Level Change
LIV tells us that the magnitude and direction of a response depend on the initial state of the system.
If the system is already dysfunctional, even minor errors will have massive consequences.
In politics and society, this means that a nation already polarized will overreact to even minor events.
In healthcare and tort law, it means that a system already structured to protect hospitals and insurers over patients will not react proportionally to isolated malpractice cases—it will actively resist systemic change.
Step 2: LIV in Medical Malpractice Reform
The Systems Error Approach and the Michigan Model aim to reduce systemic resistance to addressing malpractice by lowering the system's baseline defensiveness (hospitals, insurers, and doctors/nurses).
At present, the baseline condition of medical professionals, hospitals, and insurers is high defensiveness, risk aversion, and institutional self-protection—which means that even legitimate malpractice claims are met with disproportionate resistance.
Just as political polarization causes irrational responses to governance, institutional fear of liability causes irrational responses to malpractice reform.
Step 3: Application to FS §768.21(8)
The exclusionary nature of FS §768.21(8) creates a legalized negligence loophole that increases hospital and insurer protectionism—they do not see malpractice as something to be fixed but as something to be covered up and defended against.
The Michigan Model, based on NASA’s Systems Error Approach, attempts to change the system's initial conditions so that hospitals react to medical errors with improvement rather than defensiveness.
Instead of fighting every claim with maximum resistance, these models create a new baseline where malpractice is acknowledged and addressed proactively.
This would lower the institutional resistance to change, making it possible to repeal FS §768.21(8) without the same level of political warfare we see now.
Step 4: Broader Implications
If hospitals and insurers are willing to acknowledge malpractice without excessive defensiveness, then FS §768.21(8) loses its primary justification—there would be no need for broad immunity if errors were handled systematically rather than adversarially.
Just as reducing polarization could help stabilize political reactions, reducing institutional fear of liability could help stabilize malpractice law.
Currently, the initial condition of both systems (politics and malpractice liability) is maximal resistance to accountability—which is why even the best reform proposals are met with extreme pushback.
The lesson from LIV is that changing individual events is not enough; you must change the system’s initial conditions before real reform can happen. In politics, this means reducing polarization before expecting cooperation. In medical malpractice reform, this means reducing institutional defensiveness before expecting a fair legal system.
This is why the work of each individual legislator is so important—it isn't just about fixing a bad law; it's about changing the initial conditions that make bad laws inevitable.
A Better Way to Handle Medical Malpractice: A System That Saves Lives and Lowers Costs
Every year, thousands of Americans suffer due to medical errors—mistakes that, in many cases, could have been prevented. Unfortunately, our current system for handling medical malpractice does little to prevent these errors and instead focuses on assigning blame after the fact. Patients who are harmed face years of litigation, doctors practice defensive medicine out of fear of lawsuits, and the only real winners are the attorneys who profit from drawn-out legal battles. It’s time for a new approach—one that prioritizes patient safety, transparency, and fair compensation over litigation and secrecy.
The good news? A proven alternative already exists. The Michigan Model, based on NASA’s aviation safety protocols, has demonstrated that a systems-based approach can reduce medical errors, increase accountability, lower costs, restore trust in the medical system, and fairly compensate victims’ families, restoring their right to due process and equal protection under the law. This approach treats medical malpractice not as an issue of individual blame but as a failure of the healthcare system that must be analyzed and improved. We must embrace this model nationwide if we genuinely want safer hospitals and better patient care.
The Problem with the Current System
The traditional medical malpractice system is reactive, adversarial, and ineffective. When a medical error occurs:
Doctors and hospitals often deny and conceal mistakes for fear of lawsuits.
Patients and families must endure long and costly legal battles to seek compensation.
Hospitals fail to learn from their mistakes because the focus is on legal defense, not systemic improvement.
The cost of malpractice insurance skyrockets, driving up healthcare costs for everyone.
Simply put, the current system does nothing to prevent errors from happening again. It treats medical malpractice as a legal problem rather than a patient safety crisis, as it truly is.
A Proven Solution: The Michigan Model
Michigan has taken a different approach—putting patient safety first while reducing lawsuits and healthcare costs. Here’s how it works:
Early disclosure: Doctors and hospitals acknowledge mistakes immediately rather than hiding them.
Fair and fast compensation: Patients receive reasonable compensation quickly, without years of litigation.
Root cause analysis: Instead of blaming individuals, healthcare providers analyze system failures to prevent future errors.
A culture of safety: Encouraging doctors and nurses to report mistakes without fear of punishment leads to improved practices and fewer repeated errors.
The results? Fewer lawsuits, lower legal costs, and safer patient outcomes. In Michigan, malpractice claims were cut in half after implementing this system, and the time needed to resolve claims dropped from 20 months to just 8 months.
A National Call to Action
If this model works in Michigan, why isn’t it being implemented nationwide? The answer is simple: the legal and insurance industries profit from the status quo. The longer a case drags on, the more money is made. Meanwhile, patients, doctors, and hospitals continue to suffer.
Alongside the clean repeal of FS §768.21(8), we need legislation that mandates transparency, encourages error reporting, and prioritizes patient safety over litigation. A law such as this would establish:
A confidential error reporting system to track and analyze medical mistakes.
Mandatory root cause analysis to identify and fix systemic flaws.
Early compensation for victims, reducing the need for expensive lawsuits.
Legal safe harbors for doctors and hospitals that participate in safety reforms.
This is not just about reforming malpractice laws—it’s about saving lives, lowering healthcare costs, and restoring trust in the medical system. Floridians deserve a healthcare system prioritizing prevention over punishment and patient care over legal wrangling.
The Time for Change is Now
We cannot afford to wait. Every day that passes under the current system means more preventable deaths, more suffering, and more wasted resources. We must embrace a systems-based approach to malpractice reform to create a truly just and effective medical system.
The Michigan Model has already proven that this works. Now, it’s time to take it nationwide. Patients, doctors, and policymakers must come together to demand change. Let’s stop the cycle of blame and start building a system that actually protects patients, supports healthcare workers, and reduces unnecessary costs.
The time for change is now. Will we continue down the same broken path, or will we finally fix the system that was meant to protect us?
Respectfully Submitted,
Philip Glickstein
www.legalizednegligence.com
An Argument for Civic Duty as a Protection of All Other Rights
By Philip Glickstein
Introduction
In the structure of democratic governance, few responsibilities are as crucial as the civic duty to serve on a jury. Unlike many rights, jury duty is an obligation that directly compels and upholds the integrity of justice and the social contract. Civic duties are not optional—they are fundamental to the preservation of individual liberties, the functioning of the State, and the maintenance of the societal framework within which rights are exercised and protected.
Let us explore the distinction between rights and duties, the philosophical underpinnings of this difference, and why service on a jury is essential to the preservation of a society governed by laws. This exploration will then bring us to an analysis of Florida Statute §768.21(8) and how its exclusionary provisions undermine citizens’ ability to perform this crucial civic role.
Rights vs. Duties: A Necessary Distinction
A right is a legal or moral entitlement to act (or refrain from acting) in a certain way, giving the individual discretion in its exercise. For example, you possess the right to vote, but there is no obligation to cast a ballot. While a core tenet of liberty, this discretion does not apply to duties.
Conversely, a duty is a responsibility imposed by law or moral principle that compels action. Fulfilling a duty is not optional. It is a requirement essential for maintaining the integrity of a democratic society. Among the most important civic duties are jury service, the payment of taxes, and military service. These are not mere suggestions but mandates that sustain the legal and societal order, and your active participation is crucial.
The Civic Duty of Jury Service
Jury duty is one of the clearest examples of civic duty. Unlike voting, jury service does not come with the option of refrainment. Citizens must serve when called upon unless they qualify for specific exemptions. This is because the jury system is not just a part, but the cornerstone of participatory democracy. It ensures that justice is administered by the people, for the people. Without the active involvement of jurors, the legal system would lose its legitimacy and effectiveness.
Philosophical Perspectives: Liberty, Duty, and Mutual Obligations
Classical liberal thinkers such as John Locke and Thomas Jefferson recognized that while protecting individual rights is paramount, a functioning society must balance liberty and duty. Immanuel Kant emphasized that duty arises from universal moral principles and is essential to ethical life. Kant’s philosophy underlines the civic cycle: a society that protects your rights requires your completion of the duty to preserve its existence. Similarly, John Stuart Mill’s Harm Principle asserts that individuals may exercise their liberty freely, provided they do not harm others. Jury duty fits within this framework: if one refuses to serve on a jury, one undermines the justice system, which proceeds to societal harm. Thus, while liberty grants the individual the opportunity to choose, society operates under a social contract, and duty compels action in the form of civic obligations such as jury duty, taxes, etc.
As expressed by Locke, Jean-Jacques Rousseau, and Thomas Hobbes, these are necessary to ensure that society functions to protect the rights enjoyed by the citizenry. For example, freedom of speech and the right to a fair trial are preserved through active participation in civic duties. If citizens fail to meet their obligations, the balance of the social contract is disrupted, threatening the structure that safeguards individual liberties. By serving on a jury, individuals uphold the right to a fair trial and contribute to the evolution of societal norms. By rendering verdicts, juries check the power of the State and ensure that laws are applied fairly. Through this participation, citizens shape the legal landscape, defining what constitutes reasonable care, acceptable behavior, and fair compensation in criminal and civil cases alike. Excluding jurors from this process weakens the ability of citizens to influence societal standards and protect their rights.
Application to Florida Statute §768.21(8)
Issue:
Florida Statute §768.21(8) bars the recovery of noneconomic damages (such as mental pain, suffering, or loss of companionship) for a specific class of citizens in medical negligence cases. This exclusionary provision effectively denies these individuals access to legal representation because attorneys will not take these cases contingently with no potential recovery of damages. The statute effectively closes the courtroom door to a subset of citizens and denies them the opportunity to bring their cases before a jury.
Impact:
Aside from the impact felt by the bereaved because their voices have been silenced, this statute also affects the entire community by depriving jurors of the opportunity to adjudicate these cases which are restricted by Subsection 8. When juries are barred from hearing cases involving noneconomic damages in medical malpractice cases, they are denied the opportunity to participate in shaping societal norms related to medical negligence. Juries are more than arbiters of individual disputes; they are essential to the collective moral judgment of the community. By systematically excluding certain cases from being heard by a jury, FS §768.21(8) undermines the jury system, weakening the social contract. The exclusionary provision in FS §768.21(8) significantly denies citizens their duty to serve as jurors, and they are effectively deprived of their civic responsibility to contribute to the evolution of legal standards and societal values, particularly in areas as critical as medical negligence.
Conclusion: The Erosion of the Social Contract
Florida Statute §768.21(8) undermines the very system that protects individual liberties by denying citizens the opportunity to participate in the justice system. This exclusion not only harms those directly affected by medical negligence but also erodes the community's collective ability to protect broader societal rights through the jury system.
In a society where jury participation is denied, the social contract falters, weakening the relationship between the individual and the State. Civic duties like jury service are essential to preserving the structure of democracy. If the jury system is compromised by a short-sighted act of the legislature, then the protection of all other rights is imperiled. This statute must be reconsidered to restore the full function of the jury system and ensure that Florida’s citizens can fulfill their civic duty to protect the rights of all.
What Are Economic versus Noneconomic Damages?
Understanding Economic and Noneconomic Damages: A Guide
By Philip Glickstein
In the realm of personal injury and medical malpractice law, the terms economic damages and noneconomic damages are frequently encountered. While both types of damages are intended to compensate the injured party, they address different aspects of harm. Understanding the distinction between them is crucial for anyone navigating the legal system, particularly when seeking just compensation for injuries or loss.
Economic Damages: Quantifiable Losses
Economic damages, also known as special damages, are intended to compensate for financial losses that are directly tied to an injury or wrongful death. These damages are objective and quantifiable, meaning they can be calculated with a fair degree of precision based on evidence such as bills, receipts, and wage statements. Common types of economic damages include:
Medical Expenses: This includes past and future medical bills related to treatment, rehabilitation, and any ongoing care required due to the injury.
Lost Wages: Compensation for income lost as a result of being unable to work, as well as loss of future earning capacity if the injury results in long-term disability.
Property Damage: Costs associated with repairing or replacing damaged property, such as a vehicle in a car accident.
Out-of-Pocket Expenses: Additional costs directly related to the injury, such as transportation to medical appointments or home modifications to accommodate a disability.
Economic damages are designed to make the injured party financially whole, returning them to the position they would have been in had the injury not occurred.
Noneconomic Damages: Subjective Harms
Noneconomic damages, sometimes referred to as general damages, compensate for the intangible and non-monetary aspects of harm suffered by the injured party. Unlike economic damages, these are subjective and cannot be calculated with the same level of precision. They include:
Pain and Suffering: Compensation for the physical pain and emotional distress caused by the injury. This encompasses both past suffering and anticipated future suffering.
Emotional Distress: Mental anguish, anxiety, depression, and other emotional impacts resulting from the injury or its consequences.
Loss of Consortium: Compensation for the impact of the injury on the plaintiff’s relationship with their spouse or family, including loss of companionship, affection, and sexual relations.
Loss of Enjoyment of Life: Damages awarded when the injury prevents the plaintiff from enjoying activities or pleasures they once found fulfilling.
Noneconomic damages are inherently more difficult to quantify because they involve subjective experiences. Courts often rely on factors such as the severity of the injury, the impact on the plaintiff’s daily life, and the testimony of medical professionals and family members to determine an appropriate award.
Key Differences Between Economic and Noneconomic Damages
The primary difference between these two types of damages lies in their nature and calculation:
Measurability: Economic damages are concrete and can be measured through documentation, whereas noneconomic damages are abstract and evaluated based on personal experience and impact.
Purpose: Economic damages aim to reimburse financial losses, while noneconomic damages seek to provide compensation for the personal and emotional toll of an injury.
Limits and Caps: Some states impose caps on noneconomic damages, particularly in medical malpractice cases, to limit the amount a plaintiff can receive for pain and suffering. Economic damages, being more concrete, typically do not face such limitations.
Conclusion
Both economic and noneconomic damages play a vital role in the justice system’s effort to compensate individuals for harm suffered due to the actions or negligence of others. While economic damages address tangible financial losses, noneconomic damages acknowledge the profound and often life-altering impact of injuries on an individual’s quality of life. Understanding these distinctions is essential for anyone involved in a legal claim, whether as a plaintiff, defendant, or legal professional.
By grasping the differences between economic and noneconomic damages, individuals can better navigate the complexities of the legal system and advocate effectively for fair compensation.
From an attorney’s perspective, taking on a case where the plaintiff is barred by statute from recovering noneconomic damages presents significant financial challenges. Attorneys typically work on a contingency fee basis in personal injury and medical malpractice cases, meaning they only get paid if they secure a settlement or judgment for their client. Their fee is usually a percentage of the total recovery, often around 30-40%.
In a typical case where both economic and noneconomic damages are recoverable, the attorney’s fee comes from the total award, which includes compensation for both tangible financial losses (like medical bills and lost wages) and intangible harms (like pain and suffering). This broader base for calculating the attorney’s fee allows for a reasonable distribution between the attorney and the client. However, when noneconomic damages are barred by statute, the compensation available is limited strictly to economic damages.
Let’s break down why this is problematic:
Limited Pool of Compensation: When only economic damages are available, the total compensation pool is significantly smaller. This means that the attorney’s fee must come exclusively from this already limited amount. For example, if economic damages are $100,000 and the attorney’s fee is 35%, $35,000 goes to the attorney, leaving the client with $65,000.
Inadequate Compensation for the Client: The purpose of economic damages is to reimburse the client for their financial losses, such as medical bills and lost wages. If the attorney’s fee is deducted from this limited amount, the client may not receive enough to cover these costs fully, let alone have anything left to address other aspects of their injury. This creates a scenario where the client is not adequately compensated, even though they have won their case.
Conflict of Interest and Professional Ethics: Attorneys have a duty to act in their client’s best interests. Taking a substantial fee from a limited economic damage award can put the attorney in a position where their fee conflicts with the client’s need for financial recovery. If an attorney accepts such a case, they may find themselves in an ethical dilemma, as the client would be left inadequately compensated despite prevailing in their claim.
Inability to Justify the Risk and Expense: Personal injury and medical malpractice cases are costly to litigate. Attorneys often advance these costs with the expectation of being reimbursed from the total recovery. Without the possibility of recovering noneconomic damages, the potential recovery may not justify the risk and expense. An attorney could end up spending more on litigation than the potential fee they could earn, making the case financially untenable.
In summary, when a statute bars recovery of noneconomic damages, it leaves attorneys with a limited financial incentive to take the case. Dedicating significant time and resources to a case where their fee would significantly diminish the client’s compensation for actual out-of-pocket expenses is not feasible. This legal restriction effectively denies many potential plaintiffs the opportunity to seek justice, as no attorney can afford to take on their case without compromising either their practice or the client’s financial recovery.
My Story…
by Philip Glickstein
Over the past 35 years, Florida Statute §768.21(8) (Subsection 8) has been a subject of intense debate and controversy. I was compelled to examine this issue due to a personal tragedy. In May 2020, I lost my 92-year-old mother to the negligence of licensed healthcare professionals. On the morning my mother was to be discharged from Winter Haven Hospital (WHH), the RN assigned to her care ignored a hospital safety policy which stated that if a patient’s bed is equipped with a Fall Prevention Alarm, the alarm must be engaged at all times. Not only did the nurse fail to document the status of the alarm when she assumed care of my mother, she also disregarded the hospital’s policy a second time some three hours later when a coworker brought the safety infraction to her attention. Approximately one hour later, my mother attempted to exit her bed to use the restroom, became tangled up in the medical tubing attached to her legs, and fell to the floor. She laid on the floor for over five minutes, in pain and bleeding internally from the injuries she sustained before a passerby finally heard her cries for help. My mother died 18 agonizing days later, covered in bruises from her neck to her thighs, front and back.
After being found negligent on seven counts by the Florida Department of Children and Families, the nurse was not held accountable for her negligence by Florida’s Department of Health. To this day, she continues to deliver her brand of nursing care to her patients. Compounding my grief and frustration with the lack of accountability for Florida’s healthcare professionals, I met a systemic barrier to my pursuit of justice in the civil court system when no attorney would take my case: all referred to the restrictive provisions of the above-cited statute. After contacting and being rejected by 85 law firms during the two-year statute of limitations period, I realized I was alone in my pursuit of justice. Several attorneys with whom I spoke confirmed that my case was solid and well-argued, but justice would not be served until the political winds shifted in Florida. In my naivete, I did not realize that in the state of Florida, the pursuit of justice is a political issue, not a legal one.
By mid-2023, I learned of a Task Force commissioned by the 1987 Florida Legislature to study an alleged “medical crisis.” I obtained a copy of the study and meticulously analyzed it, uncovering multiple discrepancies between lobbyists' and lawmakers' assertions, the intent of the legislative response, and the brutal reality of the statute's impact on the Constitutionally-protected rights of Florida citizens and tourists/visitors alike. My research suggests that the 35-year-old narrative surrounding the passage of Subsection 8 is incomplete, misleading, and harmful to the trust placed in government by the citizens, in doctors by their patients, and to the overall health of a civil society. This paper will review the problems, examine the challenges, and offer solutions for the future. This is my way to honor my mother’s legacy so other families and patients are safer.
