Florida's Medical Malpractice "Free Kill" Law

Imagine that your only child, an unmarried, childless, daughter aged 26, has died due to medical malpractice. Or turn that around and imagine that you, a widow, have died due to medical malpractice, leaving behind your 26-year-old daughter. Did you know that due to a current Florida law, neither one of you would have legal recourse against the doctor who caused harm? How can that be?

Florida’s wrongful death statute specifies who can sue for medical malpractice and recover damages. Section 8 of that law specifies that only spouses and minor children of a decedent may pursue damages for pain and suffering in medical malpractice cases. A minor child is defined by statute as under 25 years old. So, while you may file a lawsuit for funeral expenses without pain and suffering damages, oftentimes it would not be a strong enough case that most medical malpractice attorneys are willing to take on.

The irony is that if these patients had survived, they would be eligible to sue for pain and suffering damages in the event of medical malpractice. Or if the same doctor hit them with a car and killed them, they would be eligible for wrongful death damages.

This law is commonly referred to by media outlets as the “Free Kill” law in Florida and was enacted to keep doctors from leaving the state due to high medical malpractice insurance rates. However, some critics report that this objective was not achieved. Data from the U.S. Department of Health and Human Services shows that Florida has among the greatest number of medical malpractice suits in the country, along with one of the top medical malpractice insurance awards. Florida is the only state in the country that has this Free Kill law, and it is considered by many who champion individual rights as egregious and discriminatory.

Update June 2025 – Potential Legislation to Repeal Florida’s Free Kill Law

The law, enacted in 1990, was meant to keep doctors from leaving the state due to the anticipated increases in malpractice insurance rates, but legislators have finally realized how this law negatively impacts the general public. Florida is the only state that has this type of law. The statute was put to the test in 2000 when the “Free Kill Law” was reviewed by the Florida Supreme Court. The Court upheld the statute, citing the state’s interest in curbing medical expenses as a justification for its decision. But critics of the law – of which there are many – claim that it has had no impact on the costs of healthcare in the state of Florida.

During Florida’s 2024 legislative season, five bills to close this loophole moved through the legislature and none of them passed. In 2025, however, Florida moved ever closer to repealing this egregious law. The measure, HB 6017, targeted a gap in Florida’s so-called Free Kill statute, which has long prevented certain family members from seeking compensation for medical negligence. The bill passed its final Senate vote on May 1, 2025, with a 33-4 majority, following a 104-6 approval in the House on March 26, 2025. It was sent to Governor Ron DeSantis for signing, but the Governor vetoed the bill on May 29th.

Contact an Orlando Medical Malpractice Lawyer

If you think you have a medical malpractice case and are not disqualified from pursuing a lawsuit due to any of the limitations discussed above, you must show that the doctor or hospital had a duty of care to the patient, that the duty of care was breached, and that the plaintiff suffered damages. Any of the Ft. Lauderdale medical malpractice attorneys or Orlando medical malpractice lawyers at Osborne, Francis & Pettis can help you understand if you have a legal case.

But you must act quickly, because there is a two-year statute of limitations for filing a medical malpractice lawsuit in the State of Florida, and the information-gathering process can be time-consuming and is considered part of that timeframe. If you believe you or your loved one has been impacted by a medical mistake and that a hospital, physician or nurse may be responsible for related injuries, contact Osborne, Francis & Pettisimmediately for a free and confidential legal consultation.