(L to R) attorney Melissa Gunion and partner Daniel Harwin Freedland Harwin Valori, Fort Lauderdale.

It is time for the Legislature to right a wrong that has existed in Florida law for far too long. It is time for the Legislature to change a law that unfairly and unjustly discriminates against a large segment of Floridians. It is time for the Legislature to amend the law to reflect the principle that all lives matter and that access to justice must be equal for all.

Section 768.21(8) excludes adult children from recovering damages for pain and suffering for the death of a parent due to medical negligence. It also excludes pain and suffering damages on behalf of parents who lose an adult child due to medical negligence. This exemption has been colloquially referred to in Florida as the "free kill" rule, as it limits vital protections for specific classes of our population. It prohibits bringing a claim for pain and suffering when an adult who dies as a result of medical malpractice was not married at the time of death and did not have any children under the age of 25. As a result, claims for the deaths of unmarried adults without minor children are rarely, if ever, brought due to the significant limitation on the damages recoverable by surviving family members. It is the only area of law where this arbitrary exception applies, and Florida is the only state in the nation that allows this exclusion.

Claims for wrongful death are governed by Florida's Wrongful Death Act. Fla. Stat. Sections 768.16-768.26. Prior to 1990, the only survivors permitted to recover for an individual's wrongful death were minor children for the death of a parent. However, the Legislature revised the statute to expand the class of survivors to include adult children for a parent and parents for an adult child, see 1990 Fla. Sess. Law Serv. 90-14 (West). Unfortunately, the Legislature also included a specific exclusion for these claims when the death is a result of medical malpractice. In doing so, the Legislature relied on the purported medical malpractice crisis that was expressed in the passage of the Medical Malpractice Act, as in Mizrahi v. N. Miami Medical Center, 761 So. 2d 1040, 1043 (Fla. 2000) citing Act Relating to Wrongful Death: Hearings on S. 324 Before Fla. Senate, Fla. Senate, 1990 Session (Apr. 17, 1990) and Hearings on H. 709 Before Fla. House Judiciary–Civil Comm., Fla. House, 1990 Session (Apr. 16, 1990).

The effect of the exclusion in this statute is that adults, who die without a spouse or minor child, have no real survivor to bring a claim on their behalf if their death is caused by medical negligence. In other words, this exemption leads to the nonsensical situation where a father can recover for pain and suffering against a physician who negligently crashes his car causing the death of his 26-year old daughter, but cannot do so when that same physician causes his daughter's death as a result of his negligent medical care and treatment.

It is illogical and irrational that the father's pain and suffering in the latter scenario is somehow lessened or rendered meritless due to the manner in which the physician caused the death of his daughter. Both situations involve a wrongful and negligent act that causes the death of an individual. However, in the latter, the physician is significantly less likely to be held accountable legally for his wrongful conduct, since the statute prevents the surviving parent from recovering pain and suffering for the loss of his adult daughter. This distinction has no justification and serves to prohibit accountability.

As recognized by Justice Barbara Pariente almost 20 years ago in her dissenting opinion, the distinction drawn by the Legislature in Section 786.21(8) has been and continues to be arbitrary. There is no evidence of a continuing medical malpractice "crisis" that justifies the exclusion of an entire group of people from bringing claims for their loved ones' death based simply on the profession of the individual responsible for causing that death. This exemption in Florida's Wrongful Death Act needs to be reconsidered by the Legislature to allow adult children to bring claims for their parents' wrongful death as well as parents who lose their adult children as a result of medical malpractice.

Daniel Harwin is a partner and Melissa Gunion is a trial attorney with Freedland Harwin Valori in Fort Lauderdale. Harwin represents victims of medical malpractice and personal injury and handles pharmaceutical, nursing home and assisted living neglect and abuse cases..Contact him at [email protected]. Gunion handles personal injury, products liability, nursing home negligence and medical malpractice cases. Contact her at [email protected].