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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. 

Potential Legislation to Repeal Florida’s Free Kill Law

Over the years there have been several attempts to overturn Florida’s Free Kill law. During Florida’s most recent legislative session, which started on January 9, 2024, there were five bills filed that would partially or fully repeal Section 8. None of them passed. The current Republican-dominated state legislature has been focused on tort reform that is more protective of the insurance and medical industry and business in general. 

Malpractice Damages Limitations

In a related matter, the Florida Senate Judiciary Committee voted, in January 2024, in favor of medical malpractice limitations, including caps on pain and suffering damages, in lawsuits against doctors and hospitals. 

Under the proposal, a plaintiff in a case involving medical malpractice could only receive a maximum of $500,000 in pain and suffering damages from doctors or practitioners, regardless of how many practitioners are liable. The cap would be $750,000 in lawsuits against hospitals or other “nonpractitioners.” In addition, lower caps would apply in litigations against doctors who provide emergency care and those lawsuits involving Medicaid patients. 

The caps would not apply to “economic” damages, which involve compensation for medical bills, lost wages, and similar out-of-pocket losses.

Fortunately, this bill was not passed by the Florida Senate.

New “Protections of Medical Conscience” Law

Another recent legal development was the signing by the governor of SB 1580, the “Protections of Medical Conscience Law.” This law, enacted in July 2023, allows any medical professional to opt out of performing certain medical procedures if they have a “conscience-based objection” to the procedures. The bill also allows insurance companies not to cover procedures that go against their stated moral or religious guidelines. This law may create legal impediments for patients who do not get the care they need, as it may be blamed on “conscience” rather than positioned as a failure to exercise the standard of care required by a medical professional.

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 Haliczer Pettis & Schwamm 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 HPS immediately for a free and confidential legal consultation at 1-800-693-4465 or fill out our CONTACT FORM.