“Free kill” law? What is that? What does the “free kill” law mean? Is it just in Florida?
The Florida “free kill” law refers to a 1972 statute that can prevent parents and adult children from recovering non-economic damages in a medical negligence case where an unmarried, childless adult has died. Non-economic damages include compensation for intangible losses suffered by the family, such as emotional distress, pain and suffering, loss of companionship, and loss of guidance. The purpose of the law is to protect medical providers from liability in medical malpractice lawsuits by creating an exception to the Florida Wrongful Death Act. However, some argue that it also denies families the justice and compensation they rightfully deserve.
What is Florida’s “free-kill” law?
Florida Statute 768.21(8) is referred to by critics as Florida’s “free-kill” law. Here’s the relevant section of law:
“The damages specified in [768.21(3)] shall not be recoverable by adult children and the damages specified in [768.21(4)] shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by section 766.106(1).”
A limitation under subsection (8) of the Wrongful Death Act (Florida Statute § 768.21) says that in a medical malpractice wrongful death claim, an adult child (age 25 or older) or parents of an unmarried adult child (age 25 or older) cannot recover non-economic damages.
When a loved one is killed in Florida due to someone’s carelessness or wrongful act, surviving family members (spouse, children, parents, and, when at least partly dependent on the decedent for support, any blood relatives and adoptive brothers and sisters) can typically recover the following damages:
- The loss of the decedent's companionship
- Pain and suffering
- Medical and funeral expenses (when they were paid by the survivors)
However, Florida’s “free-kill” law creates an exception in medical malpractice wrongful death cases, only. If the victim died due to any other form of negligence, such as a car crash, these damages would be available. If it’s a medical malpractice case, adult survivors are not permitted to recover pain and suffering damages or loss of companionship damages for their loss of a loved one.
Who can recover full damages?
- The surviving spouse may recover lost support, services, companionship, and mental pain and suffering.
- Minor children (under age 25) of the decedent may recover non-economic damages for lost parental companionship, instruction, and guidance.
Who cannot recover non-economic damages in medical malpractice wrongful death cases?
- Adult children (age 25 or older) of the decedent
- Parents of a child aged 25 or older who died due to medical negligence
- Other relatives (such as siblings or grandparents)
How the free kill law works
Here’s an example of how the free kill law affects Floridians:
Jane, a 50-year-old single mother in Florida, visited her local hospital for a routine surgery. Tragically, due to a medical error during the procedure, Jane did not survive.
Jane's two children, David and Lisa, both in their mid-20s, were devastated by their mother's sudden passing. In addition to their grief, they were shocked to discover the medical negligence that caused Jane's untimely death. Wanting to hold the hospital accountable and recover damages for the loss of their mother's companionship, guidance, and the pain and suffering they've endured due to her loss, they consulted an attorney.
However, under Florida Statute 768.21(8), their attorney informed them that, because Jane's death was due to medical malpractice, David and Lisa, being adult children, could not recover damages for their pain and suffering or loss of companionship. Had their mother died in a car accident or any other form of negligence, they could have sought damages for their losses.
The law allowed them to recover only for any medical or funeral expenses they might have paid on their mother's behalf. For David and Lisa, this meant that the emotional toll of their mother's wrongful death at the hands of medical professionals could not be legally recognized in the way other accidental deaths would be.
What is the purpose of Florida’s “free-kill” law?
Florida’s controversial law was passed in 1990. The intention of the law was to prevent frivolous lawsuits, lower insurance costs, and prevent physicians from leaving the state.
The law undoubtedly benefits physicians, but opponents have argued for years that the law prevents families from seeking justice.
The latest attempt to repeal the law (SB 690) died in the judiciary on May 5, 2023.
Florida is the only state in the country to have an age limit in wrongful death cases based on medical malpractice.
Filing a wrongful death lawsuit in Florida
At first glance, it might seem that certain family members are entirely barred from recovering damages in these cases. However, it’s important not to jump to this conclusion without speaking to an attorney about your unique case.
One important thing to remember is that not all medical-related deaths qualify as "medical malpractice" under the law. There are instances where a death in a medical setting might be due to other forms of negligence, or even intentional acts, that do not fall under the restrictive scope of medical malpractice. For instance, if a hospital's maintenance staff fails to repair a faulty electrical outlet, leading to a patient's death by electrocution, this might not be considered medical malpractice, even if it occurred within a medical facility.
Given these complexities, it's vital for anyone facing the devastating loss of a loved one in a medical setting to consult with an experienced Florida attorney. A skilled attorney can assess the specifics of your situation and advise on the best course of action.
Personal injury and medical malpractice lawyers & the free kill law
For a Florida attorney, the free kill presents challenges that might not otherwise present themselves in a “typical” case. There are a few key considerations that lawyers need to bear in mind to effectively advocate for their clients and manage their expectations.
- Case screening. An attorney evaluating a medical malpractice wrongful death claim in Florida must immediately check whether the potential claimant falls within the statute’s allowed class of beneficiaries (spouse or minor children). If the claimant is an adult child over 25 or a parent of an adult child, the ability to recover non-economic damages is severely restricted, and the case might be not be worth pursuing.
- Damages strategy. Even when the statute bars certain recoveries, lawyers may still pursue compensation for economic and support-loss damages (lost wages and support, funeral and medical expenses). However, they must clearly explain the limitations on non-economic relief to the client.
- Settlement considerations. Because the recovery potential is significantly reduced for excluded beneficiaries, attorneys may negotiate with medical defendants accordingly—recognizing reduced leverage and adjusting expectations.
- Jurisdictional considerations. The lawyer must ensure the case qualifies as medical malpractice wrongful death (rather than ordinary negligence). Mischaracterizing the claim can lead to pitfalls, given the unique restrictions in the wrongful death statute for medical negligence.
What should you do if you’re affected by a Florida medical negligence lawsuit?
If you suspect that your loved one died due to medical negligence in Florida, these are important questions:
- Is there a surviving spouse?
- Are there minor children (under 25)?
- Does the adult or parent intend to seek damages for pain and suffering?
Consult a medical malpractice attorney as soon as possible. Even if non‐economic damages are barred for you, seek legal counsel about recoverable economic and support damages, and evaluate the overall case viability.
See our guide Choosing a personal injury attorney.