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

by | Sep 17, 2020

Medical and Professional Malpractice (1)

When someone refers to Florida’s “free kill” loophole, they are talking generally about wrongful death lawsuits. Specifically, however, they are referring 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.

Origin of the Name

In some circles, this provision has earned the “Free Kill” nickname because, as the logic goes, under this exemption a dead patient poses no financial liability, whereas a severely injured—but living—patient does.

Effect of the Exemption

According to §768.21(8), F.S., 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 the wrongful death, only a spouse, parent(s) of a minor child, or a minor child may can recover pain and suffering damages. 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.

Importantly, Florida is the only state in the nation with this type of an exclusion. Given the state’s high population of widowed seniors and unmarried or divorced adults whose children are over 25, it is estimated more than half the state’s population falls into this no-man’s land.

Has Someone You Loved Died?

If you have lost a loved one due to medical malpractice and are unsure about your legal rights, we are here to help you. The laws are complex and difficult to parse, and you should not have to tackle this problem on your own. Call us at 561.372.3800 or fill out the confidential form below to get some clarity and guidance.

Wrongful Death in Florida (1)

When someone refers to Florida’s “free kill” loophole, they are talking generally about wrongful death lawsuits. Specifically, however, they are referring 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.

Origin of the Name

In some circles, this provision has earned the “Free Kill” nickname because, as the logic goes, under this exemption a dead patient poses no financial liability, whereas a severely injured—but living—patient does.

Effect of the Exemption

According to §768.21(8), F.S., 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 the wrongful death, only a spouse, parent(s) of a minor child, or a minor child may can recover pain and suffering damages. 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.

Importantly, Florida is the only state in the nation with this type of an exclusion. Given the state’s high population of widowed seniors and unmarried or divorced adults whose children are over 25, it is estimated more than half the state’s population falls into this no-man’s land.

Has Someone You Loved Died?

If you have lost a loved one due to medical malpractice and are unsure about your legal rights, we are here to help you. The laws are complex and difficult to parse, and you should not have to tackle this problem on your own. Call us at 561.372.3800 or fill out the confidential form below to get some clarity and guidance.

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Other FAQs!

Don’t miss these other FAQs from the lawyers at Personal Injury & Accident Law Center, your go-to resource for information about personal injury cases in Boca Raton. 

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