Florida’s “Free Kill” Law – A Death Trap for the State’s Populace and Visitors

Florida’s Wrongful Death Act, Statute 768.21, provides guidelines for who can bring a medical facility and provider to court in the event that they cause wrongful death to a patient. The answer is frightening given the degree to which deadly medical errors, the third leading cause of death in the US according to the CDC, continue to occur over and over.

The law has been dubbed “Free Kill” by an overwhelming number of advocates. The phrase was initially coined by The Florida Justice Association, but caught on because while it can cost money to correct mistakes, keep hospitals safely staffed and update equipment, it is free to kill. The bottom line is that this law allows hospital shareholders to be more valuable than the human lives it’s costing.

Florida’s Wrongful Death Act leaves more than half of the population in the state unprotected from medical errors and essentially denies residents and visitors alike the right to live once they enter a hospital. Even worse in a state hospital, where even married victims can only sue within a prohibitive cap that exceeds the cost of a lawsuit (see 768.28 Florida’s Sovereign Immunity law for hospitals, Jeb Bush 2005).

The populations most affected are unmarried college students (2.3 million), widowed seniors (6.8 million), veterans returning from war who are yet to be wed or have children, LGBT community members, middle-aged single and divorcee populations whose children have aged beyond age 25, and siblings and parents of the wrongfully deceased. Pretty much every unmarried person in the state with either no children or children over age 25 is a potential victim of Florida’s Free Kill Law.

Over the course of time since this antiquated law’s inception in 1972, put in place by Governor Ruben Askew, several individuals have challenged this law as unconstitutional. Do we not have a right to file a grievance in a court of law (1^st Amendment) and the right to pursue life equally without prejudice (14^th Amendment)? Apparently not in Florida (see Mizrahi vs. N. Miami Medical, 2000) where the Supreme Court ruled that overturning 768.21 would mean the rise of healthcare costs for all Floridians and therefore they consider Florida just in upholding this statute, in spite of the fact that since 1972 healthcare costs have increased unilaterally across the United States by over 300%.

In addition, this barbaric statute has robbed the Medicaid & Medicare systems since 1972, literally allowing hospitals and medical facilities to steal from the elderly and the poor. In the other 49 states that do not have this law in place, when a wrongful death case is won in a court of law, not only does the family receive payment for loss of contribution, emotional strife, etc, the hospital must also repay the funds that were given by Medicare and/or Medicaid. In Florida, however, more than half of the wrongful death cases which have occurred are not permitted to be brought before a court at all. No court case equals no lawsuits equals no paybacks to these essential federal programs designed to help those in need.

Below, a quick outline of the statute itself.

The following subsections are relevant:

Subsection 3:

What this means is that in the case of wrongful death of a parent, pertaining to medical facilities and workers, minor children and all children of the deceased are eligible to file a grievance in a court of law.

Subsection 4:

What this means is that in the case of wrongful death of a minor child, the parent is eligible to sue on behalf of the deceased child. In the case of an adult child’s wrongful death, a parent may also sue on the behalf of the adult child if said adult child has no one else to bring forth a claim. Damages awarded can include mental pain and suffering.

Subsection 5(a)(2):

Defines a minor child to be a person under the age of 25.

Subsection 8:

What this means is that none of the people eligible in subsections 3 & 4 can sue on behalf of their deceased loved one when a “claim for medical negligence” or a “claim for medical malpractice” or the failure to render services causes wrongful death.

Additionally there is no mention at all of granting the ability for someone to bring forth a lawsuit if the deceased has no children and was not married. So if a person dies childless or if their children are over age 25, per section 768.18(2) they can become a free kill in the State of Florida. Please take this Free Kill quiz to find out if you are a Florida Free Kill.

Florida is well known for its sunshine and the state attracts many spring breakers, college students and the elderly. The vast majority of the state’s populations are potential free kills.

Two daughters of wrongful death victims, Melody (me) and Debbie, came together after experiencing our own terrible wrongful death tragedies that cost the lives of our fathers.
My father was hospitalized under the Baker Act for “complicated grief” a few hours after my mother died, and heavily sedated with Haldol, Seroquel, Ativan and other drugs. They gave him more and more sedatives until he stopped breathing. To date the only response I have received to my complaint is “We have deemed his care acceptable.” As someone who was raised to be accountable for my own actions, I find it downright appalling that medical facilities and providers can escape accountability in this way.

Debbie and I have started an advocacy program as a platform to share our anger, dismay and grief. Together we have raised awareness, have a registered subscription of over 1500 people, over 20,000 petition signatures and recently, over 500 signatures on a letter to Florida Senate and House Representatives requesting a bill for change. In early 2018 we will form an official non-profit organization (new name pending) in order to take it to the next level in funding advertising and literature.

With verbal support from a few lawmakers we plan to bring “Florida’s Right to Live” amendment to full fruition and are hopeful to see change by 2019. We both have vowed to never give up, and plan to not only continue pushing for change but to kick it up a notch. We have nothing but time, we aren’t going anywhere, and we will see this through. Our dads are already gone, and we can spend the rest of our days changing this law to honor them if we have to.