The Florida Free Kill Law Examined

The Florida Free Kill Law Examined   

                                                                                                                   Hayley Hassan*

Florida is known for beautiful sandy beaches, carefree living, and the glowing sun.  For many Floridians, however, life is not always so sunny.  Section 768.21(8) of Florida’s statute governing negligence, more commonly known as the “Free Kill Law,” has many Florida natives feeling alienated, sidelined, and hopeless.  See Marcus J. Michles, Florida’s Free Kill Law: Protecting Doctors from Responsibility for Malpractice, Michles & Booth (Feb. 18, 2015, 2:33 PM),  The statute, frequently challenged for its constitutionality, separates the survivors of wrongful death victims into two classes: survivors of victims as a result of general negligence and survivors of victims as a result of medical malpractice.  See Fla. Stat. Ann. § 768.21(3)–(4), (8) (West 2017).  The latter class is particularly limited, excluding all but the spouse or minor child of a victim from bringing a claim.  Id. § 768.21(8).

When asked to defend the statute’s constitutionality in 2000, the Florida Supreme Court utilized the Florida medical malpractice insurance crisis as a legitimate government interest, for which the statute was deemed to bear a rational relationship.  See Mizrahi v. N. Miami Med. Ctr., Ltd., 761 So. 2d 1040, 1043 (Fla. 2000) (per curiam).  This past June, however, the Florida Supreme Court struck down a different law supported by the very same interest following a previous decision which held that the medical malpractice insurance crisis was no longer a legitimate state interest.  See, e.g., N. Broward Hosp. Dist. v. Kalitan, 219 So. 3d 49, 59 (Fla. 2017); Estate of McCall v. United States, 134 So. 3d 894, 914–15 (Fla. 2014).  The opinion particularly emphasized the reversible nature of laws grounded on state interests whose circumstances change with time.  Kalitan, 219 So. 3d at 59.  Florida legal professionals, state politicians, and passionate advocacy groups vehemently argue that the Florida Free Kill Law violates the Equal Protection Clause of the Florida Constitution.  See, e.g., Mizrahi, 761 So. 2d at 1041; Dadsdaisies, (last visited Nov. 8, 2017).  Now that a major source of support for the law has been deemed illegitimate, should the “Free Kill Law” be amended?  Challengers ultimately beg to ask the Florida courts: what is more important, medical cost or medical care?

The Florida Statute

In order to pursue a claim for wrongful death, there must be a survivor to initiate the action.  Section 768.21 defines who is eligible as a survivor in wrongful death cases.  Fla. Stat. Ann. § 768.21 (West 2017).  The list includes as survivors: the spouse of the deceased, minor and adult children of the deceased, parents of deceased minor children, and parents of deceased adult children.  Id. § 768.21(1)–(4).  This list, however, dramatically decreases when it comes to wrongful death suits that arise out of medical malpractice.  See § 768.21(8).  In these cases, section 768.21(8) precludes all but the current spouse or minor child in bringing a wrongful death claim.  Id.  In other words, parents of victims over the age of eighteen and adult children of victims may not bring a claim for wrongful death as a result of medical malpractice.  See id.

Legitimate State Interest?

In 2000, Mizrahi upheld Florida statute section 768.21(8) as constitutionally sound, holding that a rational relationship existed between the statute and a legitimate state interest.  See 761 So. 2d at 1043.  Applying the lowest level of constitutional scrutiny, the court found that section 768.21(8) passed the rational-basis test and held that “the statute’s disparate treatment of medical malpractice wrongful deaths does bear a rational relationship to the legitimate state interest of ensuring the accessibility of medical care to Florida residents by curtailing the skyrocketing medical malpractice insurance premiums in Florida.”  Id. at 1041.  This rationale was significantly supported by “the medical malpractice crisis and its adverse impact on the accessibility of health care during the passage of section 768.21.”  Id. at 1042.  According to the court, “limiting claims that may be advanced by some claimants would proportionally limit claims made overall.”  Id. at 1043.

Fourteen years following the Mizrahi decision, the court in McCall struck down section 766.118, which allowed for caps on noneconomic damages for medical malpractice wrongful death suits.  See 134 So. 3d at 897.  The court held that the law did not rationally relate to a legitimate state interest, notably the same interest that the Mizrahi court used to support section 768.21(8).  Id. at 909.  In support of their decision, the Florida Supreme Court expressly disqualified the medical malpractice insurance crisis as a legitimate state interest, declaring “the finding by the Legislature and the Task Force that Florida was in the midst of a bona fide medical malpractice crisis, threatening the access of Floridians to health care, is dubious and questionable at the very best.”  Id.  Moreover, the court reasoned “even if a ‘crisis’ existed when section 766.118 was enacted, a crisis is not a permanent condition.  Conditions can change, which remove or negate the justification for a law, transforming what may have once been reasonable into arbitrary and irrational legislation.”  Id. at 913.

Most recently in Kalitan, the court struck down Florida statute sections 766.118(2) and (3), effectively prohibiting caps on noneconomic damages for medical malpractice injuries regardless of their severity.  See 219 So. 3d at 59.  Using McCall as precedent, and language from Judge Pariente’s dissent in Mizrahi, the court emphasized that “a statute may become constitutionally invalid due to changed conditions.”  Id. at 56.  Following McCall, the Kalitan court renounced the existence of a medical malpractice insurance crisis and found the caps unconstitutional, stating “if the objective no longer exists, then there is no longer a ‘legitimate state objective’ to which the caps could ‘rationally and reasonably relate.’”  Id. at 59.    

McCall and Kalitan emphasized that “a law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed.”  Id. at 59; McCall, 134 So. 3d at 913 (quoting Chastleton Corp. v. Sinclair, 264 U.S. 543, 547–48 (1924)).   Now that the Florida Supreme Court has articulated, through two cases, that conditions have changed, should Florida statute section 768.21(8) be deemed arbitrary and irrational legislation?  In the absence of a legitimate government interest, should Mizrahi be revisited?             

Equal Protection?  

Challengers continue to target the statute as a violation of the Equal Protection Clause, specifically noting the unfair separation between victims of general and medical negligence.  See, e.g., Kalitan, 219 So. 3d at 56–59.  Critics question the extra protection awarded to medical professionals.  See, e.g., Michles, supra (“Doctors that cause the death of their patients should be fully responsible for their actions and the same laws should apply to them as they do to any other person.”).  Both McCall and Kalitan emphasize the fundamental unfairness in dividing two similarly situated people; whether it be limiting caps between “slightly and severely injured plaintiffs” or the disparate treatment conferred to the tortfeasors who cause the injuries.  Kalitan, 219 So. 2d at 54.  Both cases refer to the distinction as “arbitrary,” and ultimately unconstitutional.  Id. at 57; McCall, 134 So. 3d at 903.  Is it fair to arbitrarily separate the survivors of wrongful death cases based on the type of tortfeasor?  Conversely, in a class of equally negligent tortfeasors, should one negligent group enjoy special protection based solely on profession?  Under section 768.21(8), it is not unreasonable to argue that a fundamental unfairness exists in separating the victims of wrongful death and the tortfeasors responsible.


For the reasons described above, some may argue that in Florida, you are better off being injured or hurt as a result of medical malpractice because at least in that case, you may sue on your own behalf.  The “Free Kill Law” unfairly limits people that are eligible to seek justice, while drawing constitutionally questionable distinctions between two similarly situated groups of people.  The legal system cannot fully cure the deep-rooted pain associated with losing a loved one due to medical malpractice.  While the concept of justice may be different for some, the accessibility must be the same for all.  Florida residents do not appear to be slowing down in their pursuit to amend the statute.  See, e.g., Kalitan, 219 So. 3d at 59; McCall, 134 So. 3d at 914–15.  With the recent decisions in McCall and Kalitan striking down a significant source of support for the law’s legitimacy, it is highly possible that the Florida courts may once again be required to defend section 768.21(8) on constitutional grounds.


*Hayley Hassan is a second-year law student at the University of Baltimore School of Law, where she serves as a staff editor for Law Review.  She is also a member of the Royal Graham Shannonhouse III Honor Society, and is the Public Relations Officer of the Federalist Society. Hayley is a legal assistant at Hassan, Hassan & Tuchman, PA and is the owner and founder of The Maryland Princess Company, LLC.  This upcoming summer, Hayley will return to Florida and join Kallins, Little & Delgado as a Summer Associate. Hayley will continue to fight for the repeal of the Florida Free Kill Law.






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