Most families who call our office about the death of a parent or adult child already know something went wrong medically. What Florida law makes no effort to advertise is that a provision inside the state’s own Wrongful Death Act may bar them from any recovery at all, based entirely on the deceased’s family status at the time of death, no matter how clear the negligence was.
Florida Statute §768.21(8) was passed in 1990, has survived repeated attempts at repeal, and remains on the books today as the ‘Free Kill’ law. It creates a specific exception to Florida’s wrongful death protections that applies in one context only: when the cause of death is medical negligence. Affected families typically find out only after their loved one is already gone.
Florida Statute §768.21(8): The Exception Inside Florida’s Wrongful Death Act
Florida’s Wrongful Death Act was written with a stated purpose: the financial burden of a preventable death belongs to the wrongdoer, not to the surviving family. §768.17 of the Act applies across every category of negligence-caused death, including car accidents, construction accidents, and premises liability, except one.
§768.21(8) carves out medical negligence. Under the statute, adult children and parents of adult children are barred from recovering non-economic damages when a doctor or hospital’s negligence causes a patient’s death. Non-economic damages are what families feel most acutely after a preventable death:
- Mental pain and suffering
- Loss of parental companionship
- Loss of guidance and instruction
Florida recognizes those losses in every wrongful death case except medical malpractice. When a provider’s negligence kills a patient who is unmarried and over 25 with no minor children, no surviving family member can hold that provider civilly accountable, which is how the statute came to be called the “Free Kill” law. Florida is the only state in the country with this restriction.
The Specifics of §768.21(8)
Adult Children Over 25
If your parent died from medical negligence in Florida and you are 25 or older, §768.21(8) bars you from recovering non-economic damages in a wrongful death case, even when negligence was clear and the death preventable.
Funeral expenses and medical bills you paid on your parent’s behalf may still be recoverable, but medical malpractice litigation requires expert testimony and years of costly preparation. In a case where the deceased had no dependents, economic-only recovery generally doesn’t justify those costs.
Parents of Adult Children
If your adult child, 25 or older, died from medical negligence and had no spouse or minor children, Florida law gives you no path to compensation for your grief, the loss of your child’s companionship, or the mental anguish of a preventable death. No distinction is drawn between a parent who lost a 26-year-old and one who lost a 55-year-old.
Florida Sen. Danny Burgess said it directly during the 2025 repeal debate: “There’s no difference between a 25-year-and-364-day-old adult and a 26-year-old’s value of life.”
Surviving Spouses and Children Under 25 Retain Full Standing
A surviving spouse and children under 25 retain full wrongful death rights against a negligent provider. For families in those circumstances, §768.21(8) does not bar a case, and the full range of wrongful death damages remains available.
Examples of Families the Law Left Without Recourse
Keith Davis, a retired Navy veteran, died in 2020 from a blood clot that went undiagnosed during a hospitalization for knee pain. He was unmarried and had no minor children. His daughter, Sabrina Davis, was barred from bringing a wrongful death case against the responsible provider. The negligence was not in dispute. Florida law had nothing for her.
Davis became one of the most visible advocates for repeal, testifying in Tallahassee. Daryl Perritt, who lost his son Cameron in 2024, has since funded a billboard at the Florida-Georgia state line that reads: “Welcome to the Free Kill State of Florida.”
In both cases, the negligence was no less clear, and no less preventable, than it would have been in any other type of wrongful death case. Florida law treated it differently based solely on who was left behind.
The 1990 Rationale vs What the Numbers Show
Florida legislators passed §768.21(8) in 1990 with two stated goals: lower medical malpractice insurance premiums and prevent physicians from leaving the state. Neither materialized.
A 2003 General Accounting Office report investigated the physician departure argument and found the claims were “anecdotal, not extensive” and sometimes “inaccurate.” New medical licenses in Florida increased during the relevant period, and the physician-to-population ratio remained stable. Malpractice insurance premiums rose steadily in the years that followed passage.
The Florida Supreme Court Upheld the Law in 2000
Morris Mizrahi died in 1993 after what his family believed was medical malpractice. His adult children sued (Mizrahi v. North Miami Medical Center, Ltd.) for non-economic damages and lost — the court threw out their case based on §768.21(8). They appealed, and in 2000 the Florida Supreme Court sided with the hospital and physicians.
The court’s reasoning came down to a low legal bar: the legislature only needed a plausible reason for passing the law, not proof that it worked or that it was fair. The ruling left §768.21(8) intact, and only a legislative repeal can remove it.
Three Decades of Repeal Attempts
Repeal efforts have appeared in nearly every recent legislative session, and each has stalled.
- HB 77 (2023): Rep. Spencer Roach introduced a bill to restore non-economic damages for parents of adult children in medical malpractice wrongful death cases. It died in subcommittee.
- HB 6017 (2025): Passed the Florida House 104-6 in March 2025 and the Senate 33-4 in May 2025, with bipartisan sponsors. Governor DeSantis vetoed it on May 29, 2025, citing the absence of a cap on non-economic damages, a cap the Senate had already rejected by a single vote (18-19). Sen. Yarborough declined to pursue a veto override.
- HB 6003 (2026): Passed the full House 88-17 on January 15, 2026. Its Senate companion, SB 1700, was filed just days before the session opened but never received a committee hearing. The bill died when the Senate took no action before the session ended.
Florida remains the only state in the country with this restriction.
What Options Remain Under §768.21(8)?
A family that appears to be barred by §768.21(8) is not always without options. Before any conclusion is reached, an experienced medical malpractice attorney needs to answer several specific questions.
Is the Death Classified as Medical Malpractice or General Negligence?
§768.21(8) applies only to deaths that fall within Florida’s statutory definition of medical malpractice. Not every death that occurs in a medical setting meets that definition. A maintenance failure or an administrative error with no connection to clinical judgment may qualify as general negligence instead, which would give the family the same wrongful death rights available in any other wrongful death case. Whether a specific death qualifies depends on the facts of what happened and who was responsible.
Families who were told they have no case should have that conclusion reviewed by an attorney with specific medical malpractice experience. We have evaluated cases where the initial conclusion was not correct.
Economic Damages When Non-Economic Recovery Is Barred
Even when §768.21(8) bars non-economic recovery, economic damages remain available:
- Funeral and burial expenses
- Medical bills family members paid on the deceased’s behalf
- Lost financial support the deceased provided to surviving family members
Whether pursuing economic damages makes sense depends on the specific losses and the cost of litigation. In cases where the deceased was financially supporting surviving family members, that analysis is a necessary step before any decision about whether to proceed.
Medical Board Complaints as a Non-Litigation Path to Accountability
When litigation is not a viable path, submitting a formal complaint to the Florida Department of Health creates an official record of the provider’s conduct. A sustained complaint can affect a physician’s license and produce a public record that does not otherwise exist.
For families whose primary goal is accountability, a formal complaint is a concrete step that does not require a lawsuit — and it can be taken regardless of whether a civil case is possible.
Speaking with a Medical Malpractice Attorney at Lesser, Landy, Smith & Siegel
Whether §768.21(8) bars your family’s case depends on facts that require careful evaluation, particularly how the death is classified and who bears responsibility for it.
Attorney Michael V. Baxter handles medical malpractice wrongful death cases at Lesser, Landy, Smith & Siegel, PLLC on a contingency basis, meaning no fee unless there is a recovery. If you lost a parent or adult child to what you believe was medical negligence in Florida, contact our office at (561) 655-2028 for a free case review.
References and Additional Reading
- https://caselaw.findlaw.com/court/fl-supreme-court/1391240.html
- https://www.fljustice.org/there-simply-isnt-enough-justice-to-go-around-controversial-free-kill-law-to-survive-with-governors-veto/
- https://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0768/Sections/0768.21.html
- https://www.flsenate.gov/Laws/Statutes/2012/0768.17
- https://floridapolitics.com/archives/786079-house-passed-repeal-of-free-kill-dies-after-senate-stays-silent-on-malpractice-tort-reform/
- https://www.orlandosentinel.com/2023/08/11/families-fight-to-end-floridas-little-known-free-kill-law-i-was-in-shock/
- https://www.orlandosentinel.com/2025/10/21/maxwell-grieving-father-erects-billboard-welcoming-motorists-to-free-kill-florida/
