All around the country there are state laws that are criticized and questioned for their flaws and narrow tailoring. However, one would be hard-pressed to find a statue that comes under more fire than what has been dubbed as Florida’s “Free Kill” law as provided in Florida Statute 768.21(8).
768.21(8) establishes who is allowed to bring a suit for a wrongful death action in the state. As Florida medical malpractice attorneys, understanding who can file a claim under this statute is essential. However, this law enforces that only a spouse or minor child (under the age of 25) can file suit to recover for pain and suffering damages when the wrongful death action stems from medical malpractice. In addition, the statute also does not allow damages for pain and suffering when a parent files a claim after the loss of their adult child as a result of medical malpractice. In doing so, the statute has earned itself the title of Florida’s “Free Kill” law since there is no threat of such monetary punishment in situations where medical practitioners fall below the standard of care and cause a patient’s death, but if that patient survives with serious harm, only then can the practitioner be exposed to significant liability.
Florida is the only state in the nation with such an exception. This significantly limits the number of wrongful death actions filed on behalf of unmarried adults who do not have minor children because without pain and suffering damages, the cost to litigate a malpractice case may be more than any potential recovery. The implementation of this exception was enacted due to an over-abundance of medical malpractice claims in the late 1990’s and 2000’s, but those same issues are not present today.
Putting this statute in a hypothetical scenario: if a doctor kills someone’s unmarried father driving their car, that adult child can file a wrongful death action and recover pain and suffering damages against the doctor. But if her father were to die at the hands of that same doctor’s medical malpractice, the adult child is unable to recover pain and suffering damages. Both acts were negligent. Both acts involve the same pain and suffering. However, a claim to recover damages for pain and suffering can only be brought forward in one of the two scenarios above.
As medical malpractice attorneys, it is our position the Florida “Free Kill” law effectively bars a number of individuals from receiving the justice they deserve when a loved one is lost. The law is one that is rightfully scrutinized for its unfair exceptions and limitations and it is in the best interest of the general public to have this statute repealed.