(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.
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