Florida’s Free Kill Law: Protecting Doctors from Responsibility for Malpractice

Under Florida law, if a drunk driver runs a red light and kills someone, if the decedent does not have a spouse, the adult children1 of the decedent can sue for mental pain and suffering, lost parental companionship, instruction and guidance. However, if a drunk doctor, during an operation, causes the death of a patient that does not have a spouse, adult surviving children of the patient cannot sue for those same damages. Now, consider the number of people in Florida with adult children that do not have a spouse. Just consider the vast number of widows and widowers in Florida with adult children. An unfair Florida law gives doctors an exemption that shuts the courthouse doors to these adult surviving children from bringing these claims for medical malpractice. Furthermore, as part of this unfair law in Florida, when a doctor’s malpractice causes the death of an adult child of a parent, and the decedent leaves no other survivors, surviving parents cannot bring a lawsuit for mental pain and suffering. Those same parents could have brought a lawsuit for pain and suffering had the death of their adult child occurred due to any other wrongful act besides medical malpractice.

The unfair law that protects doctors is Florida Statute § 768.21(8) (sometimes referred to as the “free-kill” law), which is part of the Florida Wrongful Death Act (Florida Statutes § 768.16-768.26). The Florida Wrongful Death Act prescribes who can claim damages when a person dies due to the fault of another person and the damages that may be claimed. Unfortunately, the act is not drafted in a fair and uniform manner.

Why does the Florida Wrongful Death Act contain this unfair exemption for medical malpractice claims that prevents these children and loved ones from bringing these basic damage claims, but allows the identical claims to be made in all other types of cases? It is all because of powerful insurance companies and medical organizations wielding their substantial financial influence by lobbying the Florida Legislature and contributing to political campaigns. In short, doctors have purchased this “free-kill” protection.

When the constitutionality of Florida Statute §768.21(8) was challenged, the Florida Supreme Court in Mizrahi v. North American Medical, Ltd, 761 So.2d 1040 (Fla. 2000), a case where two of the seven justices dissented, ruled that the law did not violate the equal protection clause of the Florida and Federal Constitutions and upheld the law as constitutional. Utilizing the lowest of three levels of scrutiny to test the constitutionality of the law, rational basis review, the Florida Supreme Court ruled that foreclosing the claims of some in medical malpractice actions would limit the overall medical malpractice claims and may advance the Florida Legislature’s stated objective of reducing the cost of health care insurance and make healthcare more affordable to the consumer. Without further exploring the analysis utilized by the majority in Mizrahi to determine the constitutionality of Florida Statute §768.21(8), keep in mind that laws that are deemed constitutional are not necessarily good laws for the public.

Has health care in Florida become more affordable because of this law that shields doctors from responsibility? No. More importantly, it is fundamentally unfair to foreclose entire classes of people from asserting damage claims, such as pain and suffering, simply because the claims are due to the fault of doctors as opposed to “ordinary” citizens like you and I. Doctors that cause the death of their patients should be fully responsible for their actions and the same laws should apply to them as they do to any other person. We live in a country devoted to equality. The Florida Legislature should not be controlled by special interest groups and the law should always be drafted in a fundamentally fair manner. If you are angered to learn that special interest groups have carved out this exemption to the Florida Wrongful Death Act and foreclosed these survivors of persons killed because of medical malpractice from pursuing entire categories of damages, such as pain and suffering, then I implore you to contact your Florida legislators and voice your dissatisfaction. Let’s work together to repeal this law before it adversely affects you or someone you love.

1 Under the Florida Wrongful Death Act, “minor children” are defined as children under the age of twenty-five years old. Thus, “adult children” are twenty-five years old and older.


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