Thu 11th Jun | 2020

Is There a Loophole in Florida’s Wrongful Death Act?

Legal Insight Medical Malpractice Medical Malpractice Caps Negligence Cases Personal Injury Wrongful Death BY

About the Florida “Free Kill” Law

Medical malpractice cases are some of the most complicated we handle at our firm, and when someone succumbs to their injuries, the cases become even more complex. Although Florida’s wrongful death statutes apply to most cases of negligence, §768.21(8) creates an exception for certain cases of medical negligence. Effectively, this serves as a loophole in Florida’s wrongful death act.

Amid critics, this controversial statute is also known as the Florida “free kill” law.

Who Is Exempt From Florida’s Wrongful Death Statutes?

If you over the age of 25, unmarried, and without minor children, your family members will not be entitled to file a wrongful death lawsuit if medical malpractice caused or contributed to your death.

As Florida Statutes spells out:

The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

While this exemption may seem harmless on paper, it causes problems for the families of unmarried young adults, such as college students and recent graduates; divorcees with adult children, and even older adults whose spouses have passed away.

No next of kin may recover damages after a wrongful death in a medical setting unless the individual is under 25, married with a living spouse, and/or the parent of minor children.

A Lack of Legal Accountability

For individuals of these demographics, medical professionals face no liability for substandard care, as long as their patient dies. Thus, the “free kill” law. As summarized by U.S. News & World Report:

The provision is known in the vernacular by a term that many in the health care and insurance industries find offensive: The Florida “Free Kill” law. Since the exemption means there is no threat of monetary punishment for lax or incompetent treatment in these cases, a dead patient represents no financial liability, whereas a severely harmed patient who survives could mean significant liability exposure. Thus the label “free kill.

More Than Half of Florida’s Population Is in Danger

Florida is the only state in the nation with this kind of exclusion, and estimates suggest more than half the state’s population is part of the “free kill” category. The state is home to many widowed seniors, unmarried college students, and middle-aged divorcees with children over 25.

In one tragic story, a 71-year-old woman lost both her husband and her son to cancer before losing yet another son to an alleged surgical mistake. Because her son was not married, no one was able to have his medical malpractice case investigated, nor file suit against the surgeon who may have caused his death.

The deceased’s girlfriend of 24 years said the couple would have married if they had known of the exception.

Florida’s “free kill” statute is designed to protect providers from lawsuits in order to decrease insurance costs and attract doctors. Unfortunately, many physicians who have previously been sued or lost their licenses in other states come to Florida for the lowered liability.

Many critics are also questioning the statute’s constitutionality, as it interferes with victims’ rights to legal action.

What If I Lose a Loved One to Medical Malpractice?

If your loved one falls into the “free kill” category, you may have a hard time filing suit, but if your minor child or spouse passes away due to medical negligence, Clark, Fountain, La Vista, Littky-Rubin & Whitman may be able to help.

In any case, we encourage you to contact us for a free consultation. Call us at 561-899-2100 to get started.