Will wrongful death non-economic damages in Florida for certain survivors, heretofore subject to the sardonically framed “Free Kill Law” in medical malpractice cases, finally apply equally to the healthcare profession?
The playing field for both plaintiffs and defendants in medical malpractice claims is on the verge of changing again. Attorneys representing both sides, as well as mediators who participate in these disputes, since medical malpractice claims are required by law to undergo mandatory mediation before trial, will need to watch the Florida legislature as a newly proposed bill moves forward. This legislation has the capacity to change the way all participants approach medical malpractice mediations. Generally speaking, as the law currently stands in medical malpractice claims, if a spouse or minor children survived the decedent, adult children of the decedent may be precluded from recovering non-economic damages.
Similarly, if other survivors exist, the parents of an adult, deceased child may be precluded from recovering non-economic damages. The preclusion from recovery by these categories of survivors in wrongful death medical malpractice suits is what gave rise to the moniker “Free Kill Law.”
Despite a veto from the governor over a similar measure last year – a veto supported by many healthcare professionals and medical liability insurers, as reported in The Florida Bar Journal – momentum has returned. On October 15, 2025, by a vote of 16-2, the Florida House Civil Justice & Claims Subcommittee approved HB 6003.
The proposed bill essentially eliminates the exceptions to recovery of non-economic damages in medical malpractice claims for survivors who were previously barred from recovery. For example, in medical malpractice claims, adult children of the decedent and parents of deceased adult children, irrespective of other survivors, would now be able to recover non-economic damages under the Wrongful Death Act as if the case arose from any other type of negligence claim.
HB 6003 must now go to the Judiciary Committee when the Legislature returns to session in January 2026. Like current law, the new version requires all claimants to be named in the complaint. As mediators of medical malpractice cases, careful scrutiny will be required of the survivors named in the complaint, not only to be creative in satiating these new parties’ non-economic losses, but also to resolve possible competing interests among the new parties over whose non-economic losses are greater or worth less. After all, the defendants and their insurers will have a finite amount of money to negotiate the claim, even though the number of survivors may have doubled.
Today’s lesson: keep your finger on the pulse of HB 6003. Like Proteus, the Greek sea god who could change his shape to take on any form, the law can do the same. Litigators, insurers and mediators may soon find there are more claimants than in days past.
Scott Newman is a mediator and arbitrator with Upchurch Watson White & Max.
