Florida Injury Attorney Blawg
Since 1990, Florida has enforced a statute commonly referred to as the “Free Kill” law. Codified at Section 768.21(8) of the Florida Wrongful Death Act, this provision creates a glaring exception in an otherwise remedial framework intended to support grieving families.
The legislative intent behind the Wrongful Death Act, as stated in Section 768.17, is clear:
“It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.”
From car crashes and construction accidents to defective products and medical malpractice, wrongful death claims arise in countless tragic ways. When negligence causes a death, Florida law generally allows surviving family members to recover damages — including for mental pain and suffering, often the most devastating aspect of such a loss.
But Section 768.21(8) carves out a critical exception: If the death is caused by medical negligence, parents of adult children (defined under Section 768.18(2) as those age 25 or older) and adult children of deceased parents are barred from recovering non-economic damages — no compensation for grief, anguish, or loss of companionship.
Yes, you read that correctly. If a doctor’s negligence kills your elderly parent or your adult child, Florida law says you’re entitled to nothing for your emotional loss. That’s why Section 768.21(8) has earned the nickname: “The Free Kill Law.”
The Insurance Myth
Proponents of the law claim it helps keep medical malpractice insurance rates down. But studies have not substantiated those claims. In fact, in McCall v. United States, 134 So. 3d 894 (Fla. 2014), the Florida Supreme Court struck down arbitrary damage caps in medical malpractice cases, finding they violated equal protection. The Court specifically rejected the idea that such caps meaningfully reduce insurance premiums or promote physician retention.
