Jeffrey P. Gale, P.A. // Proxy Republican Legislators Kill Efforts to Abolish Florida’s “Free Kill” Medical Malpractice Law

Since 1990, Florida has maintained a statute that has come to be commonly referred to as the “Free Kill” law.  The statute, section 768.21(8), is located in the damages portion of the Wrongful Death Act.

The legislative intent of the Wrongful Death Act is set forth in section 768.17:

It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.

From motor vehicle crashes, construction accidents, defective products, and even medical negligence, wrongful death is caused in countless ways. The Wrongful Death Act allows the survivors of the decedent to recover from the wrongdoer once fault is established. Included within these remedies is the right to recover for mental pain and suffering. 768.21(8) is the exception to the rule.

Under 768.21(8), when a death is caused by medical negligence, mental pain and suffering damages (known as non-economic losses) are not recoverable by a parent for the loss of an adult child or by an adult child for the loss of a parent.  768.18(2) provides that a child 25 years of age or older is an adult child under the Act.

Yes, you read that right. Hence, the reason why 768.21(8) has come to be known as the “Free Kill” law.

Proponents of the law argue that its purpose is to keep medical malpractice insurance rates in check. Studies do not back up the rhetoric. In McCall v. United States, 134 So. 3d 894 (Fla. 2014), the Florida Supreme Court struck down arbitrary damage caps in medical malpractice cases based on the same proposition, debunking arguments from medical malpractice insurance lobbyists and organized medicine.

A groundswell of support has formed over the years to repeal the “Free Kill” law. In the 2024 Florida legislative session, various bipartisan bills were put forward to wipe the law off the books. Some no-strings-attached clean bills designed to abolish the law were proposed. Unfortunately, legislators with strong support from the lobbyists in the health care and insurance industry came forward to derail those efforts. SB 248, put forward by state Sen. Corey Yarborough (R), gained traction among Republicans. It conditioned abolishment of the “Free Kill” law on reinstating unconstitutional damage caps — see McCall — in all medical malpractice cases. Thankfully, the bill was defeated, but the distraction resulted in a lost opportunity to eliminate 768.21(8). Maybe next year.

Not a week goes by where our office does not receive an inquiry from a survivor frustrated by the “Free Kill” law hoping for a miracle. The most frequent inquiries come from the adult children of elderly parents. Oftentimes, we are not the first law firm to have to break the bad news. Not that it’s any consolation, but we do tell them to contact their representatives to express displeasure. They all say they will.

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