Florida Looks to Impose Noneconomic Damage Caps, End ‘Free Kill’ Law

A bill that would end a Florida law denying recoverable damages for certain wrongful death medical liability claims and impose noneconomic damage caps on medical malpractice awards cleared a key hurdle last month when it was approved by the state’s Senate Judiciary Committee.

Florida Statute §768.21(8) currently restricts the recovery of damages in wrongful death medical liability lawsuits to spouses and minor children. Parents of an adult child, and adult children of a parent, who died due to medical negligence are prohibited from suing for damages. Should the decedent have no spouse or minor child, no damages are recoverable. Florida is the only state with such a statute, which is derisively referred to as a “free kill” law by its adversaries. Lawmakers passed the legislation in 1990 to attract physicians to the state, but the controversial law has received increasing negative attention as surviving “free-kill” family members have spoken to the news media.

Senate Bill (SB) 248 contains a strike-all amendment that would eliminate the language in §768.21(8) limiting recoverable damages and impose a $500,000 total noneconomic damage cap on claims against healthcare providers, regardless of the number of providers who are liable; a $750,000 noneconomic damage cap for hospitals and other “non-practitioners”; and a $150,000 noneconomic damage cap for providers in emergency cases.

According to Senate Judiciary Chair Clay Yarborough, SB 248’s sponsor, including the noneconomic damage caps was necessary to get the various stakeholders to agree to repeal §768.21(8).

“Because efforts over the last several years to do a clean repeal have not garnered enough support to pass the Legislature, I knew we needed to find a way to thread the needle and strike a balance to try to help impacted individuals,” Yarborough said of the noneconomic damage caps in a televised interview with CBS News.

“If we are going to expand the universe of claimants in the state of Florida [by striking §768.21(8)], there must be some countermeasure, some counterbalance that is going to provide fairness and balance in the civil justice system,” testified Andrew Bolin, a medical malpractice defense attorney and representative of the Florida Justice Reform Institute, before the Senate Judicial Committee in support of the noneconomic damage caps.

The Florida Legislature last imposed a noneconomic damage cap on medical liability awards in 2003, after a special task force investigated the status of Florida medical malpractice insurance premiums and found “a medical malpractice insurance crisis of unprecedented magnitude.”

The Supreme Court of Florida determined the 2003 cap was unconstitutional in wrongful death medical liability claims in 2014 and for all medical liability causes of action in 2017. Both times the high court concluded that the medical liability noneconomic damage cap violated the Equal Protection Clause of the Florida Constitution.

Supporters of SB 248 have expressed confidence that the legislative language of the proposed noneconomic damage caps addresses the constitutional concerns expressed by the Supreme Court in 2014 and 2017, including the equal protection violations. They also note that the high court’s judicial philosophy has trended conservative since those decisions, with Gov. Ron DeSantis appointing five of the seven justices currently serving.

And while SB 248 has received bipartisan support, the noneconomic damage caps have divided some of those who support repealing §768.21(8).

“While I understand that your amendment aims to allow these families access to the courts without opening up the hospitals and doctors to an extreme level of liability, I have a hard time putting a dollar amount on the pain and suffering felt by some of these families,” said state Sen. Lauren Book in opposition to the proposed noneconomic damage caps during the Senate Judicial Committee hearing. “I’m not sure that treating one injustice and limiting another is the right way to go.”

SB 248 must pass two more committees before the full Senate could vote on it. Should it become law, SB 248 would take effect in July of this year and would not be retroactive.