A unique provision in Florida’s medical malpractice laws that protects insurers, healthcare providers, and hospital systems from liability in certain wrongful death cases is one step away from being repealed. A new law that would remove the provision from Florida’s malpractice laws was passed on May 1, 2025. As of May 12, it was awaiting the signature of Florida Governor Ron DeSantis.
“If the new bill is signed into law, the repeal it triggers will likely shift the landscape for medical professionals and carriers alike,” said Robin N. Khanal, Managing Partner of the Orlando office of Quintairos, Prieto, Wood, & Boyer P.A. “Providers may see an increase in exposure, and insurers will need to re-evaluate risk profiles and premium structures to account for the broader claimant pool now eligible to bring suit.”
Khanal is a Civil Trial Board Certified Attorney who practices in complex personal injury defense, predominantly in medical malpractice, nursing home, assisted living, and premises liability. A leader in his field, Khanal is a sought-after national speaker in the areas of health care, risk management, compliance challenges, and other cascading regulatory concerns. Quintairos, Prieto, Wood, & Boyer P.A. is a leading national litigation firm committed to helping clients navigate legal and regulatory changes that impact their business.
As Khanal points out, the repeal would significantly impact health providers and insurers, opening the door to lawsuits that had previously been prohibited. The Bill Analysis provided by the Florida House of Representatives reported that its provisions could have an “indeterminate negative fiscal impact” on state government, local government, and healthcare providers. If the governor vetoes the law, those fiscal impacts could be the driving force behind his decision.
Understanding Florida Statute 768.21(8)
The recent legislative action is focused on what has come to be known as Florida’s “free kill” law. Located within the section of Florida’s statutes that outlines the procedure for seeking damages in the case of wrongful death, the provision facing repeal restricts certain parties from seeking damages. The provision, which is unique in the nation, was reportedly implemented in 1990 to cut back on medical malpractice suits and the costs associated with them.
“For the past 35 years, Florida law prohibited adult children over the age of 25 and parents of adult children from pursuing non-economic damages — such as pain and suffering — in cases of wrongful death caused by medical malpractice if the deceased was unmarried and had no minor children,” Khanal explains. “This carve-out was unique to medical malpractice and did not apply to other types of wrongful death.”
On May 8, 2025, the American Tort Reform Association petitioned DeSantis to veto the bill, arguing its impact on the state’s legislation would “expose Florida’s doctors and other healthcare providers to greater, unpredictable liability by undoing a longstanding constraint on subjective noneconomic damage awards in medical liability lawsuits.” The association pointed out that the Florida legislature allows such damages in other cases, but has kept the provision related to medical liability in place “to protect access for Floridians to needed, affordable medical care.”
Those supporting the repeal say it would open the door for families who lose loved ones due to avoidable medical mishaps to seek recourse and hold healthcare providers accountable. Florida Senator Clay Yarborough, who sponsored the Senate version of the bill, says the “free kill” provision limits action in cases of medical malpractice that would otherwise be available to the survivors of victims in any other case of negligence.
Preparing for the changes a repeal would bring
Increased exposure to lawsuits would be the most obvious impact of the law’s passage. Healthcare providers could expect to face more medical malpractice death cases involving a broader range of plaintiffs.
“A repeal would mean previously barred claims may now proceed, increasing the volume and complexity of litigation,” Khanal says. “There would also be the potential for higher settlements and verdicts. With a wider pool of claimants now eligible to file suits, damages awarded in wrongful death cases may rise, especially for non-economic losses like emotional suffering and mental anguish.”
If the provision is repealed, healthcare providers could also see pressure on insurance premiums. Some opponents warn that enacting the change would lead to higher medical malpractice insurance costs, with hospitals and specialists most likely experiencing the worst of the increase.
To prepare for the possible change, those who may be affected should review their existing policies to ensure they provide adequate protection. Updating staff training to address evolving standards of care and the importance of medical recordkeeping could also reduce risks.
“Internal audits should be conducted to identify any vulnerabilities in patient care or documentation practices that could become the focal point of future claims,” Khanal says. “Providers should also consider partnering with defense counsel proactively to build litigation strategies and identify emerging trends in Florida’s malpractice environment.”
Governor DeSantis’ office has not issued a comment on the bill since it was passed by the legislature. If he signs it, it will be scheduled to take effect on July 1, 2025.
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