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Florida has a unique and often controversial provision within its wrongful death statutes, colloquially known as the "Free Kill Law." This law, specifically Florida Statute Section 768.21(8), significantly limits who can recover certain damages in wrongful death cases that arise from medical negligence.
What is the "Free Kill" Law?
In essence, Florida's "Free Kill Law" restricts the ability of certain family members to seek non-economic damages (such as pain and suffering, mental anguish, and loss of companionship) when a loved one's death is caused by medical malpractice.
Who is affected?
The law primarily impacts:
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Adult children (age 25 or older) of a deceased parent: If your parent dies due to medical negligence, and they do not leave behind a surviving spouse or minor children (under 25), you, as an adult child, are generally barred from recovering damages for your emotional pain and suffering.
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Parents of a deceased adult child (age 25 or older): Similarly, if your adult child (25 or older) dies due to medical malpractice, and they do not leave behind a surviving spouse or minor children, you, as their parent, are generally prevented from recovering damages for your mental pain and suffering.
Key Impacts of the "Free Kill" Law:
What's the rationale behind it?
The "Free Kill Law" was enacted in the 1990s as part of broader tort reform efforts. Proponents argued it would help lower medical malpractice insurance premiums and prevent doctors from leaving the state due to high litigation costs. However, critics argue that there is no conclusive evidence to support these claims, and that the law disproportionately harms grieving families.
Key Impacts of the "Free Kill" Law:
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Denial of Justice for Families: Many families who lose loved ones to medical negligence are left without legal recourse for their profound emotional losses, creating a disparity in justice compared to other types of wrongful death cases (e.g., car accidents).
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Limited Accountability for Healthcare Providers: Because certain cases cannot proceed for significant damages, critics argue that the law reduces the financial consequences for medical negligence, potentially diminishing the incentive for providers to maintain the highest standards of care.
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Unique to Florida: Florida is largely the only state in the U.S. with such specific restrictions on who can file wrongful death claims in medical malpractice cases based on the age and marital status of the deceased.
Important Considerations:
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Economic Damages May Still Be Recoverable: Even if the "Free Kill Law" applies, families may still be able to recover economic damages, such as medical expenses, funeral costs, and lost wages.
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Other Wrongful Death Cases Are Different: It's crucial to understand that this restriction primarily applies to wrongful deaths caused by medical negligence. In wrongful death cases stemming from other causes (like car accidents or premises liability), adult children and parents typically have broader rights to seek damages, including for pain and suffering.
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Ongoing Efforts for Reform: There have been ongoing legislative efforts to amend or repeal the "Free Kill Law." Advocates continue to push for changes that would allow more families to seek full justice for medical malpractice fatalities.
If you believe you have been impacted by medical negligence leading to a wrongful death in Florida, it is crucial to seek legal advice from an experienced attorney immediately. The complexities of this law, along with potential alternative legal theories, require a thorough understanding of Florida's specific statutes and case precedents.
