The future of Florida’s unique ‘free kill’ malpractice law

An attempt to overturn a one-of-a-kind Florida law—known by some critics as “free kill”—has recharged debate over how to reduce medical malpractice premiums.

Passed in 1990 as part of the state’s Wrongful Death Act, Florida Statute 768.21 says only a legal spouse or child under 25 can sue for pain and suffering damages if an adult 25 or older dies due to medical malpractice. That means if a childless and unmarried person dies, their unwed partner and family members couldn’t sue for pain and suffering on their behalf.

On May 1, the state Senate passed a reform in a 33–4 vote (HB 6017) that would undo this limitation, allowing parents to file a wrongful death suit on behalf of their adult children as well as adult children to sue on behalf of their parents if the deceased was unmarried.

Then on May 29, Gov. Ron DeSantis vetoed the reform, saying repealing the statute would bring “unpredictable liability” and incentivize “unmeritorious claims.”

The state Legislature can overturn this veto with a two-thirds majority, but it’s unclear if it will. “Free kill” critics and victims’ loved ones say they’ll keep fighting for reform regardless, arguing these are unequal and discriminatory limits on who can seek justice after a death due to medical negligence.

Without a lawsuit, families’ only option is to report suspected malpractice to the Florida Department of Health for review.

Premium concerns. In line with DeSantis, Florida Hospital Association (FHA) President and CEO Mary Mayhew told Healthcare Brew she believes that if this bill had taken effect, it would have increased the cost of medical malpractice insurance premiums and payouts, driving physicians away from the state.

Florida doctors currently face the third-highest premiums, according to the Florida Office of Insurance Regulation. The state also saw $382 million in medical malpractice payouts in 2022, beat only by New York, according to Forbes, though that data doesn’t differentiate wrongful death suits.

“We already are at a disadvantage because of our litigious climate, with physicians choosing not to come to Florida or to leave Florida because of liability concerns,” Mayhew said.

The Florida Department of Health’s 2024 physician workforce report found that over 3,000 doctors planned to relocate their practices to another state in the next five years. Of those, the most common motivation was for family or financial reasons.

But 1.3% (39) said they were leaving because of malpractice insurance rates and about 6.5% (199) because of their liability exposure.

Payne rejected the idea that overturning “free kill” would overly inflate cases, payouts, or premiums.

“We always vet each case on its merits, and every case undergoes an extremely strict review process, so I don’t believe our caseload [would] change dramatically, but I do believe that accountability [would] increase,” he said.

Caps considered. Beyond Florida, medical malpractice insurance premiums are on the rise nationwide, up 2.5% from 2023 to 2024, according to the American Medical Association.

Limiting who can sue, like in Florida, is a rare approach to addressing this problem.

The more common one is to set caps on payouts in personal injury and malpractice verdicts. As of February 2024, more than half of states had damage caps in effect, according to Thompson Law Injury Lawyers.

DeSantis said he would have OK’d the law if it had included caps on noneconomic payouts and plaintiff attorney fees in malpractice verdicts, and Mayhew said the FHA would not have opposed it either.

Studies have linked caps on noneconomic damages to lower premiums after states like North Carolina implemented them, but they have also been linked to an increase in adverse medical events while other studies have argued there’s not enough evidence to say either way.

The bill’s sponsor, State Sen. Clay Yarborough, proposed an amendment on April 30 that would have capped payouts at $1 million, but it was promptly voted down.