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Understanding Florida’s Wrongful Death Act, Statute § 768.21(8)

Relevant Bills for 2022: HB 6011 & SB 262 | HB 6039 & SB 560


Florida Statute § 768.21(8) provides limitations for who can bring a lawsuit against a medical facility or healthcare provider if their medical negligence causes the wrongful death of a patient. 


This is the actual statute, word for word: 

Section (3):  Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain suffering from the date of injury.  For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other. 


*What this means is that in the case of wrongful death of a parent, minor children (children under 25 as defined by the Wrongful Death Statute), and all children of the deceased are eligible to file a lawsuit in a court of law. 


Section (4):  Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury.  Each parent of an adult child may also recover for mental pain and suffering if there are no other survivors. 


*What this means is that parents of adult children may also file a claim to recover damages if the adult child was not married and has no children. 


Section (8): The damages specified in subsection 3 shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1). 


*What this means is that if the wrongful death was due to medical negligence or error, the parents of an adult deceased and adult children of the deceased may not file a lawsuit.  Only a spouse or minor child is not precluded.  A minor child is described as anyone under age 25. There is no option available to those groups of individuals to seek redress or justice in court for medical negligence.


Persons age 25 and above, without a spouse and without a minor child are therefore eligible to be a Florida Free Kill (Victim of the Wrongful Death Act)


Points to ponder:

  • This law allows medical providers to take a Kevorkian-like position in that there is a realization that if a patient in this population dies then that can be a better legal outcome for a healthcare provider than trying to save the life of a patient knowing they will have long-term injuries. This is made only worse because it is without patient permission, with no fear of retribution.


The current situation

ONLY in the State of Florida, certain classes of people are being denied rights when negligent death from only medical negligence occurs to a family member.

  • All persons age 25 and above, without a spouse and without a minor child are therefore eligible to be a Florida Free Kill (Victim of the Wrongful Death Act) Florida Statute § 768.21(8) denies unmarried adults without minor children equal protection under the law and deprives the survivors of these individuals of their right to access the courts for redress as enumerated by the Florida Constitution in the case of medical negligence causing death.

  • The Florida Free Kill Law arbitrarily without reason punishes the most grievously injured and their surviving family members

The problem:

  • This law facilitates a culture of a lack of accountability (that does not exist anywhere else) among Florida medical practitioners and facilities.

  • Increases Medicare payments and healthcare costs passed on to the state of Florida and the public taxpayer

  • This law is discriminatory against

    • 2.3 million unmarried graduate students 

    • 6.8 million widowed seniors 

    • LGBT community

    • Divorced and widowed adults whose children are no longer minors

    • Tourists and part-time residents to Florida who are unmarried, minus a minor child

    • Disabled adults (Autistic etc)

    • Any unmarried adult without a child

What is NOT the problem but has been used to keep this law in place:

  • Florida does not have a shortage of doctors (See 2020 Physician Workforce Annual Report - Gov. Ron Desantis)

  • Medical malpractice insurance rates have continued to rise in spite of this statute §768.21(8), which was the argument 20 years ago when it was enacted, therefore this purported solution to take away equal rights to justice afforded under the Florida Constitution for this entire population had no bearing on malpractice premiums

  • The rise of insurance premiums by malpractice carriers is a separate problem unrelated to those families killed by medical negligence and can be addressed with other legislation like requiring all practitioners to carry minimum malpractice insurance in order to increase the pool of premiums across higher risk practices and lower risk practices thereby reducing overall premiums rates

  • Ensuring that healthcare providers who continue to engage in medical negligence can’t continue to practice in the state of Florida giving rise to higher insurance costs for other providers and increasing the burden on the general public to account for the care and treatment of those injured who can’t seek redress

How the new law resolves it:

  • When it comes to human life, accountability is non-negotiable and a pillar of civil justice. It allows Florida to join the rest of the country in not discriminating against unmarried adults, young adults who just graduated college and starting their careers, and the most vulnerable populations of older adults

  • By holding medical practitioners accountable we increase the quality and safety of healthcare and decrease medical errors (the third leading cause of death)

  • Eliminating an outdated unconstitutional and discriminatory law by upholding State and Federal Constitutional rights of equal protvection under the law

  • When a victim prevails in a wrongful death suit, the healthcare provider must pay back Medicaid, Medicare and health insurance companies.  In Florida, if the victim falls into the “Free Kill” category of a wrongful death case, the hospital does not have to pay back said organizations and the victims are left without recourse. Changing this would decrease the cost of care and provide for the culpable tortfeasors to pick up the costs of the injuries caused by their negligence

  • Repeal of §768.21(8) allows Florida's doctors who repeatedly fail to meet medical standards to have consequences that ensure that high quality medicine is practiced in the state of Florida and that it is not a safe haven for doctors who have been unable to practice in other states because of their past negligent conduct

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