Florida is the only state with a rule that bars certain family members from recovering pain and suffering damages when a loved one dies from medical negligence. Critics call it the “free kill” law. Two repeal efforts have now failed, and the rule remains in effect in 2026. Here is what it does, who it affects, and what families can still recover.
What the Law Says
Florida’s Wrongful Death Act allows survivors to recover for their mental pain and suffering and loss of companionship when a family member is killed by negligence. Section 768.21(8), Florida Statutes, carves out medical negligence. In a medical malpractice death case:
- Adult children (25 and older) cannot recover these damages for the death of a parent.
- Parents cannot recover these damages for the death of an adult child (25 and older).
The practical effect: if a 70-year-old widow with adult children dies from a surgical error, no one can recover for the family’s grief, and because the economic losses are often small, the case may not be viable at all. The same is true for a single 30-year-old with no children whose parents survive.
Who Is Not Affected
A surviving spouse can recover for loss of companionship and mental pain and suffering. Children under 25 can recover for lost parental companionship and mental pain and suffering. The estate can recover medical and funeral expenses and, in some cases, lost net accumulations. These claims remain fully available in medical negligence cases.
The Repeal Efforts
In 2025, the Legislature passed HB 6017 to repeal the exception by overwhelming margins, but the Governor vetoed it on May 29, 2025, citing concerns about insurance costs. In 2026, HB 6003 passed the House but died in the Senate. The rule remains in force, and families should plan around it.
Why Early Evaluation Matters
Because the exception turns on who survives and how old they are, a family’s options depend on facts that should be evaluated at the first call. Even where the exception applies, there may be other paths: a claim against a non-medical defendant, a claim that the death resulted from something other than medical negligence (for example, a fall in the hospital caused by ordinary negligence rather than medical judgment), or a claim under a different legal theory. These distinctions are technical, and they decide whether a case exists.
Deadlines and Presuit
Medical malpractice wrongful death claims generally must be filed within two years of when the death was discovered or should have been discovered as caused by malpractice, with a four-year outer limit. Florida requires an expert’s opinion and a 90-day presuit investigation before suit. Claims against public hospitals follow section 768.28, with notice requirements and damage limits.
How The Injury Advocates Can Help
We handle medical malpractice wrongful death cases across South Florida and give families an honest assessment of how section 768.21(8) affects their claim. Your consultation is free, and you owe no fees or costs unless we win.
Frequently Asked Questions
Is Florida’s free kill law still in effect?
Yes. The 2025 repeal was vetoed and the 2026 bill did not pass the Senate.
My father died from a medical error and I am 30. Can I recover anything?
Under section 768.21(8), you cannot recover pain and suffering, but the estate can recover medical and funeral expenses and certain economic losses, and a surviving spouse or a child under 25 retains full rights. A lawyer should review whether any other theory applies.
Does the rule apply to nursing home deaths?
Nursing home claims under Chapter 400 follow their own rules, and the answer depends on whether the death resulted from medical negligence or from a violation of residents’ rights. This should be evaluated case by case.
Related: Learn more about our medical malpractice wrongful death practice.
Kweku Darfoor is the founder of The Injury Advocates (Darfoor Law Firm, P.A.) and a Florida personal injury attorney with more than a decade of experience representing seriously injured people and their families. This content is for general information and is not legal advice.
