Florida's 'Free Kill' law makes it nearly impossible for patients to reach a malpractice settlement

By Stephanie Srakocic | Fact-checked by Davi Sherman
Published August 9, 2023

Key Takeaways

  • Florida’s “Free Kill” law prevents adult children and the parents of anyone over 25 from filing for medical malpractice in the event of wrongful death.

  • Proponents of this law claim that it prevents frivolous lawsuits and keeps insurance premiums low.

  • Opponents of the law say that the arbitrary age limits harm Florida families and reduce standards of care.

Florida Statutes 768.21 includes a controversial provision that prevents families from filing wrongful death and medical malpractice suits unless they meet specific criteria. Known as Florida’s “Free Kill” law, this piece of malpractice legislation has been the subject of debate for years. In the past 2 years alone, five different bills have been introduced in Florida’s state government in an attempt to change this law, but none have been successful. 

Under the current law, only surviving spouses or children under the age of 25 can file medical malpractice claims on behalf of deceased patients over the age of 25. Florida only establishes this age limit for cases of wrongful death in medical settings and is the only state in the country to have any sort of age limit in place. In other states, adult children can file on behalf of parents and parents can file suit on behalf of adult children.[]

Florida’s controversial law has been in place since 1990. As is true for many malpractice laws, such as award caps and statutes of limitations, its original intent was to lower insurance costs and prevent physicians from leaving the state. Critics of this law call the age limit arbitrary and argue that it disproportionately harms, marginalizes, and lowers standards of care for certain demographics, such as disabled adults. Advocates point out that many members of this demographic never marry or have children, meaning that, under current Florida law, once they’re over the age of 25, no one would be able to file malpractice charges on their behalf should medical harm lead to their death.[]

Additionally, while the law may have originally been put in place to keep insurance rates down, opponents say that it now prevents families from seeking justice, as the way the law is written stops cases before they even get to trial. 

“Different state laws [inform] whether a plaintiff’s attorney will even take on a case,” explains Dr. David L. Feldman, MD, the Senior Vice President and Chief Medical Officer of Healthcare Risk Advisors (a New York City–based group offering professional liability insurance to physicians) and Chief Medical Officer of The Doctors Company, the nation’s largest physician-owned medical malpractice insurer.

In Florida, this understandably leaves some families feeling helpless and angry and has led to citizen petitions, protests, and campaigns to effectuate a change in the law.

However, not everyone is on board with striking the “Free Kill” law. Some lawmakers, insurance groups, and provider organizations support the longstanding provision. Advocates say that it prevents frivolous lawsuits and makes Florida a “physician-friendly” state in which to practice medicine. As recently as spring 2023, bills in Florida’s state government were introduced that could’ve expanded the “Free Kill” law. Notably, a bill proposed by Republican House Representative Dan Maggard, House Bill 1029, would have applied the same limits to nursing homes. Had the bill passed, it could have eliminated as many as 90% of nursing home–based wrongful death suits in the state. Proponents of HB 1029 claim that this is beneficial and that it prevents wasting time, money, and other resources. Opponents, however, say that it leaves seniors vulnerable to harm.[] []  

Medical malpractice law changes in Florida

While the debate surrounding “Free Kill” laws continues, Florida has recently shifted its focus to other malpractice laws. In March, Governor Ron DeSantis signed into law legislation changing the statute of limitation for filing medical negligence claims from 4 years to 2 years. The statute of limitations for wrongful death was already set at 2 years.[]  

In July, the Florida Supreme Court ruled that the defense team in medical malpractice cases can call for an appeal mid-trial and move to dismiss a suit based on the qualifications of a plaintiff’s expert witness. Under Florida law, the plaintiff must provide an expert witness who is a practicing physician in the same specialty with at least 3 years of experience. A witness who is a general practitioner must have at least 5 years of experience. Previously, if the defense team was unsure whether these qualifications were met, it had to wait until the end of a trial to appeal a motion to dismiss a suit.[]

Both of these recent changes to Florida malpractice law seem focused on curtailing malpractice suits and keeping malpractice premiums low. What this means for efforts to repeal the “Free Kill” law is yet to be seen, and for now, the law remains in place. The latest attempt at change, Florida Senate Bill 690, filed by Democratic Senator Lauren Book, failed to make it through the legislative session. With so much debate surrounding the issue, it’s likely that this will be revisited by state lawmakers in the near future.

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