Justice Denied: The Fight to Reform Florida’s ‘Free Kill’ Law for Medical Malpractice Victims
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On Aug. 21, 2024, Dr. Thomas Shaknovsky, a Florida colon and rectal surgeon, accidentally removed William “Bill” Bryan’s liver rather than his spleen during a hand-assisted laparoscopic splenectomy procedure at Ascension Sacred Heart Emerald Coast Hospital in Destin, Florida. Unfortunately, Bryan passed away that same evening due to medical complications, and Bryan’s parents were barred from recovering damages for pain and suffering due to Florida’s “Free Kill” Law. Although the Free Kill Law was enacted in order to lower healthcare costs, it should be amended to provide fair compensation for victims and enhance accountability for doctors.
History of the Free Kill Law:
Florida’s Free Kill Law, or Section 768.21 of the 2024 Florida Statutes (Subsection 8 of Florida’s Wrongful Death Act), is a state law that prohibits adult children and parents from recovering damages in medical malpractice suits if the victim is 25 years old or older. Under current Florida law, only surviving spouses and minor children are able to sue for damages associated with “pain and suffering” after a wrongful death caused by medical negligence.
The Free Kill Law was first enacted as a part of Florida’s Wrongful Death Act in 1972, as a means to shield doctors and healthcare providers from assuming liability in costly medical malpractice suits. At the time, rising medical malpractice insurance costs were seen as a threat to the healthcare industry, and lawmakers sought to control this by limiting the types of family members who could file a wrongful death claim and seek damages. Lawmakers enacted this provision to help hospitals and healthcare providers avoid costly insurance premiums, aiming to keep healthcare costs low and accessible for consumers while encouraging healthcare professionals to stay in the state.
Conflicting Viewpoints:
Florida’s Free Kill Law has been the subject of intense criticism from various advocacy groups, lawmakers, and legal experts, who argue that the current statute leaves families of certain medical malpractice victims without justice.
Families of deceased victims argue that the law effectively grants immunity to healthcare providers when negligence leads to the death of a single, childless adult. They point out that the law allows negligent doctors or hospitals to avoid accountability, undermining justice for families whose only recourse is barred by this legal loophole. For instance, after losing her mother during a routine medical procedure because the hospital overdosed her on medicine, Tamika Ganzy expressed her frustrations at the lack of legal recourse, explaining that attorneys were reluctant to take her case due to the legal difficulties of seeking damages under the Free Kill Law. Sabrina Davis expressed similar frustrations at the system when her father died in October 2020 at a Tampa hospital as a result of a blood clot, after the hospital had continuously refused her requests to perform an ultrasound for blood clots.
It is also worth noting that although other states have laws that place certain limitations on who can bring a medical malpractice suit, Florida is currently the only state that explicitly limits damages if the victim is over the age of 25. For instance, Texas’ Wrongful Death Act allows parents to file a wrongful death claim and sue for damages even if their adult child is over 25 and unmarried, as long as they can prove that the death resulted from medical malpractice or negligence.
Meanwhile, supporters of the law, such as William Large, the President of the Florida Justice Reform Institute, argue that expanding the right to sue for damages would lead to an increase in malpractice claims, which could drive up insurance premiums for doctors and hospitals, ultimately raising healthcare costs for patients.
While both sides of the debate offer strong arguments, data shows that the Free Kill Law has not had its promised effects. For instance, according to the U.S. Department of Health and Human Services, Florida has continuously ranked among the top three states for the highest number of medical malpractice suits filed and the total dollar amount paid out since 1990. And according to the Florida Department of Health’s 2022 Physician Workforce Annual Report, the number of doctors planning to move out of Florida has increased by 57% over the past 10 years, possibly indicating that the Free Kill Law has not done a sufficient job of incentivizing healthcare professionals to stay in the state.
What is needed is a balanced approach that ensures families of victims receive fair compensation for their loss while keeping healthcare insurance premiums stable and encouraging doctors to remain in the state. Senate Bill SB 248, introduced last year by Senator Clay Yarborough, aimed to achieve this balance by allowing anyone to file a medical malpractice claim but capping damages at $500,000 per claimant and $750,000 if filed against a non-practitioner, such as a hospital or medical office. Although the bill was ultimately rejected by the Florida legislature this year, it marked a positive first step towards finding a middle ground, offering a foundation for future legislative efforts.
Conclusion:
To address the injustice created by Florida’s Free Kill Law, lawmakers must prioritize patient rights and work to close the loophole that denies families their day in court. The path to reform may be difficult, but the increasing awareness of the law’s devastating impact on families may finally push legislators to act. Until then, Florida remains one of the few states where medical negligence can go unpunished simply because the victim was unmarried and childless—leaving families to bear the emotional and financial consequences without justice.
Suggested Citation: Alice Kang, Justice Denied: The Fight to Reform Florida’s ‘Free Kill’ Law for Medical Malpractice Victims, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Oct. 31, 2024), https://jlpp.org/justice-denied-the-fight-to-reform-floridas-free-kill-law-for-medical-malpractice-victims.
Alice Kang is a second-year law student at Cornell Law School. Prior to law school, she received her B.S. in Communication at Cornell University in 2021. Aside from her involvement with Cornell Law School’s Journal of Law and Public Policy, Alice is also an Honors Fellow for the 1L Lawyering Program and is also a member of Business Law Society and the Asian Pacific American Law Student Association.