Restrictions on accountability for fatal medical malpractice are a miscarriage of justice
We trust doctors and other medical professionals to provide the care we need when we are sick or injured. And when they don’t follow standards of care, we should be able to trust the civil justice system to provide accountability and fair compensation. This is especially true when a medical professional’s mistake causes a loved one’s death.
Unfortunately, that is exactly the scenario in which many Florida families find themselves without any legal options. Florida’s “Free Kill” law absolves medical professionals of any meaningful accountability when their negligence kills patients, based solely on the patient’s family status. This unjust law must be repealed.
What is the “Free Kill” Law in Florida?
Florida Statutes Section 768.21 limits who can pursue damages for pain and suffering in a wrongful death case. Under this statute, when someone over age 25 dies due to medical negligence, the only people who can pursue pain and suffering damages are the deceased person’s surviving spouse and children under age 25.
What this means in practice is that, if the deceased person has no spouse and no children under 25, then no one can recover damages for pain and suffering. This happens far too often in medical malpractice cases involving older, widowed adults who only have adult children. It also means parents of unmarried adults cannot recover from the loss of their children – a particularly devastating outcome for parents of special needs adults who were still under their parents’ care.
Put another way, if you are over 25 and unmarried or widowed with no minor children, you are a “free kill” as far as Florida medical malpractice law is concerned. While the law does, in principle, allow the deceased person’s estate to sue for funeral and burial expenses in this scenario, that is a meaningless remedy in practice, because the cost to litigate a medical malpractice case is higher than the cost of a burial. Without damages for pain and suffering, there is no case.
This law undermines the whole purpose of the civil justice system. It’s not just about the financial compensation: if there is no case, then there is no investigation, no process of discovery, and no implementation of systems that prevent future tragedies. It also draws an arbitrary line: a surviving patient can sue, but a deceased patient’s family cannot.
Florida lawmakers need to fix this law and provide a pathway to justice for families
The healthcare and insurance lobbies have worked quite hard to keep the “free kill” law on the books to protect medical providers and their insurance companies from liability. Two bills were recently introduced in the Florida legislature to remove the provisions that prohibit adult children and parents of adult children from recovering compensation – HB 129 and SB 248 – but both bills died in committee.
It’s long past time for Florida lawmakers to step up and prioritize accountability for negligent medical providers and justice for grieving families. The law shouldn’t treat one person’s life as worth less than another based purely on whether the person has a spouse or minor children. Medical providers shouldn’t be able to avoid liability for fatal negligence just because a particular patient doesn’t have the right living relatives to bring a lawsuit. Floridians deserve better.