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What is Florida’s “Free-Kill” loophole?

by | Jun 15, 2021

Florida’s “free-kill” loophole concerns wrongful death lawsuits in the context of medical malpractice. Specifically, it refers to a restrictive exemption buried in the Florida Wrongful Death Act that limits who can and cannot recover certain damages in a medical malpractice-specific wrongful death lawsuit.

The provision is a bit complicated. According to §768.21(8), Fl .Stat., a parent whose adult child dies or, vice versa, an adult child whose parent dies, provided that the person who died did not have a spouse or minor child, is forbidden from recovering pain and suffering damages in a wrongful death lawsuit where the death is due to medical malpractice. In other words, in cases where medical malpractice led to a wrongful death, pain and suffering damages are only available to

  • a spouse,
  • parent(s) of a minor child, or
  • a minor child.

In effect, this significantly limits the number of wrongful death actions filed on behalf of unmarried adults who have adult children because without pain and suffering damages the cost to litigate a malpractice case may be more than any potential recovery. Florida is the only state in the nation with this type of an exclusion, and it is estimated that more than half the state’s population falls into this no-man’s land.

The “Free-Kill” nickname originated because, as the logic goes, a medical professional would prefer a dead patient to an injured and living one because under this exemption a dead patient poses no financial liability, whereas a severely injured—but alive—patient does.

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