Quick answer: Under Florida Statute § 768.21(8), adult children age 25 or older cannot recover non-economic damages for a parent’s death caused by medical malpractice. Parents also cannot recover such damages for an unmarried adult child’s death if that child had no minor children. This exception applies only to medical negligence claims. Surviving spouses, minor children, and victims of non-medical negligence (like a hospital slip and fall) are not affected.
Losing a family member to a medical mistake is devastating, and most grieving families expect the law to hold negligent providers accountable. In Florida, that isn’t always true. Under a statute unique to this state, many families are barred entirely from recovering pain-and-suffering damages after a medical malpractice death. The base of this is solely because of the victim’s age or marital status.
This law is widely known as Florida’s “Free Kill” law, and understanding whether it applies to your situation, or whether a legal exception opens a path forward, is essential before you assume there’s no recourse.
What Florida Statute § 768.21(8) Actually Says
In an ordinary Florida wrongful death case, such as a fatal car accident, surviving family members can recover non-economic damages. This include mental pain, suffering, loss of companionship, and loss of guidance. Florida Statute § 768.21(8) carves out a strict exception for medical malpractice cases specifically. Under this statute, non-economic damages cannot be recovered by:
- Adult children age 25 or older, for the wrongful death of a parent caused by medical negligence
- Parents of adult children age 25 or older, for the wrongful death of an adult child caused by medical negligence, provided the child was unmarried and had no minor children of their own
Why It’s Called the “Free Kill” Law
Medical malpractice litigation requires expensive expert witnesses. You need extensive discovery, and significant financial backing. Economic damages alone, such as funeral costs or paid medical bills, are typically far too low to make a malpractice lawsuit financially viable to litigate.
When non-economic damages are barred entirely, families in the affected categories often have no realistic way to fund a case. And that’s even when the underlying negligence is clear. Critics of the statute argue this leaves negligent providers facing effectively zero civil liability whenever an unmarried adult over 25 dies from a medical error, which is where the law earned its blunt nickname.
Court Challenges and the Law’s History
Florida’s Free Kill law has faced repeated constitutional challenges since it was enacted in 1990, and understanding how those challenges played out matters for anyone evaluating a potential claim today.
Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 (Fla. 2000). The adult children of Morris Mizrahi sued for non-economic damages after his death, allegedly caused by medical malpractice. The Florida Supreme Court upheld § 768.21(8), ruling that the Legislature only needed a “rational basis” for the law, specifically, an interest in containing rising medical malpractice insurance costs, not proof that the restriction was effective or fair.
Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014). Fourteen years later, the Florida Supreme Court struck down a related statute that capped non-economic damages in malpractice cases, ruling that the “medical malpractice crisis” once used to justify such limits was no longer a legitimate governmental interest. Malpractice attorneys have since argued McCall should also invalidate § 768.21(8), since it rests on the same reasoning the Court rejected. Florida’s appellate courts have so far limited McCall’s holding to damage caps specifically, leaving § 768.21(8) fully in force.
The 2025 Repeal Effort and Governor DeSantis’s Veto
In 2025, the Florida Legislature passed HB 6017, a bipartisan bill that would have repealed § 768.21(8) and restored the right of adult children and parents to seek non-economic damages in medical malpractice wrongful death cases.
The bill passed both chambers by wide, bipartisan margins. Governor Ron DeSantis vetoed it, citing concerns that repealing the restriction without new caps on non-economic damages would raise healthcare costs and worsen Florida’s physician shortage. Because Florida’s existing damage caps were already struck down in McCall, a “repeal with caps” compromise remains legally difficult to construct. As of this writing, § 768.21(8) remains fully in effect. Florida is still the only state with a rule restricting wrongful death claims based on the age and marital status of an adult victim.
Exceptions: When the Free Kill Law Does Not Apply
Not every death connected to a medical facility falls under § 768.21(8). An experienced wrongful death attorney will evaluate whether your case can be classified under one of these exceptions:
- Ordinary negligence or premises liability. If the death resulted from a non-medical error, such as a slip and fall in a hospital hallway, or inadequate security leading to an assault, the case may be treated as standard negligence rather than medical malpractice. Thiw means it is bypassing § 768.21(8) entirely.
- Surviving spouse standing. If the deceased was legally married at the time of death, the surviving spouse retains full standing to sue for non-economic damages. This is regardless of the victim’s age or whether they had adult children.
- Minor children under 25. If the deceased had any surviving child under age 25, that child and other dependent relatives can pursue full non-economic damages.
Frequently Asked Questions
Can an adult child sue a doctor if the estate has large medical bills? Yes, but only for economic damage. This means out-of-pocket medical expenses and funeral costs, recovered on behalf of the estate. Malpractice lawsuits often require tens of thousands of dollars in expert witness fees alone. Those economic damages rarely cover the cost of bringing the case.
Does the Free Kill law apply if my parent was married? No. If the deceased parent was legally married at the time of the medical negligence, the surviving spouse has full standing to pursue a wrongful death claim.
What should I do if I suspect medical negligence caused my family member’s death? Florida medical malpractice claims carry a strict two-year statute of limitations and require early expert review before a case can even be filed. Consult an attorney as soon as possible to evaluate standing, family relationships, and whether a non-medical negligence theory might apply to your case.
This article is for general informational purposes and does not constitute legal advice. Every family’s situation is different. If you’ve lost a loved one due to suspected medical negligence, contact RCT Law (Reinfeld Cabrera Tison), serving Coral Springs and Ft. Lauderdale, for a free consultation to evaluate your legal options.
Related reading: Wrongful Death Claims in Florida — RCT Law
Sources: Fla. Stat. § 768.21(8); Mizrahi v. North Miami Medical Center, Ltd., 761 So. 2d 1040 (Fla. 2000); Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014); North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017); HB 6017 (2025) legislative history and gubernatorial veto, as reported by the Florida Phoenix, Florida Politics, and the Florida Justice Reform Institute.
