Florida’s legislature has passed a significant change to the state’s medical malpractice laws, repealing what has been dubbed by the plaintiff’s bar as the “free kill” provision. This change may have substantial implications for insurers, healthcare providers, and hospital systems across the State. With the final senate vote of 33 to 4, passage of House Bill 6017 is now pending the Governor’s signature or a potential veto.

What is the Change?

For the past 35 years, Florida law prohibited adult children (over age 25) and parents of adult children from pursuing non-economic damages—such as pain and suffering—in cases of wrongful death caused by medical malpractice, if the deceased was unmarried and had no minor children. This carve-out was unique to medical malpractice and did not apply to other types of wrongful death.

“This repeal will likely shift the landscape for medical professionals and carriers alike,” said Robin N. Khanal, Managing Partner of QPWB’s Orlando office. “Providers may see an increase in exposure, and insurers will need to re-evaluate risk profiles and premium structures to account for the broader claimant pool now eligible to bring suit.”

How Did It Work in Practice?

To understand the significance of this change, it helps to look at how the provision impacted real-life scenarios:

• Example 1: The Unmarried Adult with No Children A 40-year-old woman dies following a preventable medical error during surgery. She is unmarried with no children. Under the previous law, her parents could not sue the hospital for non-economic damages.
  
  If signed into law, they may pursue a wrongful death claim for pain and suffering, even without economic dependency.
  
• Example 2: Adult Child Loses Parent to Malpractice A 70-year-old man passes away due to an undiagnosed infection in a hospital. His only child is a 45-year-old son. Previously, the son was barred from seeking non-economic damages because he was an adult.
  
  If signed into law, he can bring a claim for his loss under the updated statute.

These examples highlight how the current law restricts medical malpractice claims based in age and martial status.

Key Implications for Businesses and Insurers

1. Increased Exposure to Lawsuits
   Healthcare providers may face a broader range of plaintiffs in medical malpractice death cases. Previously barred claims may now proceed, increasing the volume and complexity of litigation.
   
2. Potential for Higher Settlements and Verdicts
   With a wider pool of eligible claimants, damages awarded in wrongful death cases may rise, especially for non-economic losses like mental anguish and emotional suffering.
   
3. Pressure on Insurance Premiums
   Industry leaders have expressed concern that the change could lead to higher medical malpractice insurance costs, particularly for hospitals and specialists.
   
4. Need for Risk Mitigation Strategies
   Healthcare entities should proactively reassess their risk management protocols, internal investigation procedures, and insurance coverage levels. Legal departments may also want to prepare for an uptick in claim activity and review case triage strategies.

What Can You Do to Prepare?

• Review existing policies with your legal counsel and insurance carriers to ensure adequate protection.
• Conduct internal audits to identify vulnerabilities in patient care or documentation that could become focal points in future claims.
• Train staff and providers on evolving standards of care and the importance of timely, accurate medical recordkeeping.
• Partner with defense counsel early to build proactive litigation strategies and identify emerging legal trends in Florida’s malpractice environment.

Review existing policies with your legal counsel and insurance carriers to ensure adequate protection.

· Conduct internal audits to identify vulnerabilities in patient care or documentation that could become focal points in future claims.

· Train staff and providers on evolving standards of care and the importance of timely, accurate medical recordkeeping.

· Partner with defense counsel early to build proactive litigation strategies and identify emerging legal trends in Florida’s malpractice environment.

QPWB remains committed to helping clients navigate legal and regulatory changes that impact their businesses. For questions about how this legislation could affect your organization, contact your QPWB relationship partner or connect with our Healthcare Litigation and Risk Management teams for guidance.