Florida’s “Free Kill” Law Faces Renewed Repeal Effort: Legal and Policy Stakes in the Battle Over Medical Malpractice Reform
The perennial battle over Florida’s restrictive medical malpractice wrongful death statute; derisively known as the state’s “free kill” law;is heating up once again. Representative Dana Trabulsy (R–Fort Pierce) has reintroduced legislation (HB 6003) to repeal §768.21(8), Florida Statutes, a 1990 provision that bars certain family members from recovering noneconomic damages in cases of medical negligence resulting in death.
The issue, long a flashpoint between patient advocates and the medical lobby, raises fundamental questions about the purpose of tort law in the healthcare context, the limits of legislative tort reform, and the balance between access to justice and cost containment.
The Law at Issue: Florida Statute §768.21(8)
Under Florida’s current statutory framework, the Wrongful Death Act (§768.16–§768.26, Fla. Stat.) provides the basis for recovery when negligence results in death. However, §768.21(8) carves out an exception for medical malpractice cases:
“No parent of an adult child may recover damages for pain and suffering for the death of that child, and no adult child may recover damages for pain and suffering for the death of a parent resulting from medical negligence.”
In effect, if a medical professional’s negligence causes the death of a patient who is unmarried and has no minor children, or if the decedent is an adult child; their parents and adult children are left without a remedy for noneconomic damages. This limitation does not apply to other types of wrongful death claims, such as those involving auto accidents or product liability.
This discrepancy has prompted decades of criticism from the plaintiffs’ bar and patient safety advocates, who argue that it creates a subclass of victims whose deaths are “free of consequence” under the law.
Historical Context: Tort Reform and the 1990 Medical Malpractice Crisis
Florida enacted §768.21(8) at the height of the medical malpractice insurance crisis of the late 1980s and early 1990s. Lawmakers, responding to lobbying from insurers and the Florida Medical Association (FMA), sought to stem rising malpractice premiums by restricting the scope of liability exposure for healthcare providers.
The assumption was straightforward: fewer lawsuits and smaller potential awards would stabilize the insurance market and help retain physicians in the state. Similar tort reform measures were adopted nationwide during this period, often with caps on noneconomic damages or limits on attorney fees.
However, critics have long argued that Florida’s restriction went beyond legitimate cost control, effectively immunizing negligent conduct in cases where the victims fall into a legally underprotected category. Over time, the law came to be known as the “free kill” statute; a term that reflects both the emotional resonance of its consequences and the political power of the groups defending it.
Rep. Dana Trabulsy’s Legislative Campaign
Representative Dana Trabulsy, who has led the repeal effort for multiple legislative sessions, has become the face of this movement. A Republican from Fort Pierce, Trabulsy has positioned the issue as one of fundamental fairness rather than partisan ideology.
“I believe in this bill, and I believe that what we are doing is right,” Trabulsy said during committee deliberations. Her persistence reflects both her legislative conviction and the growing bipartisan recognition that the statute creates inequities that cannot be justified on fiscal grounds alone.
In 2025, Trabulsy successfully shepherded a prior repeal bill (HB 6017) through both chambers with broad support. Yet, Governor Ron DeSantis vetoed the measure, warning that the repeal could “open the floodgates for litigation” and destabilize Florida’s healthcare system.
The legislature declined to override the veto;a move that underscored DeSantis’s influence and the continuing sway of the insurance lobby. Nevertheless, the reintroduction of HB 6003 signals that House leadership remains committed to reexamining the issue in 2026.
The Opposition: Medical and Insurance Industry Concerns
Opposition to repeal has been spearheaded by medical and insurance groups, who argue that expanding liability would lead to increased malpractice premiums and could worsen physician shortages in high-risk specialties.
Tallahassee orthopedic surgeon Dr. Andrew Borom, testifying before the House Civil Justice & Claims Subcommittee, warned that Florida physicians already pay the highest malpractice rates in the nation. “If your goal is to just throw another golden bone to the trial lawyers, you can feel free to do that,” Borom said. “But if you want physicians who are well-trained and experienced to stay here in Florida, you need to reconsider this.”
The Florida Medical Association and Florida Hospital Association have consistently echoed these arguments, urging lawmakers to pair any repeal with new statutory caps on noneconomic damages;a politically difficult measure in light of the Florida Supreme Court’s decisions striking down similar caps in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), and North Broward Hospital District v. Kalitan, 219 So. 3d 49 (Fla. 2017).
Those rulings held that caps on noneconomic damages in medical malpractice cases violated the Equal Protection Clause of the Florida Constitution, leaving the legislature with limited tools to manage potential cost increases.
The Human Cost: Voices Behind the Movement
Advocates for repeal have grounded their campaign in human stories that illustrate the statute’s real-world consequences. Alyssa Crocker, who testified before lawmakers, recounted the death of her father following alleged negligence at a Miami hospital. “I can’t replace my dad, ever. He’s dead,” she told the committee. “If you don’t want to be sued, don’t be negligent. It’s that simple.”
For families like Crocker’s, the law adds an additional layer of injustice: not only is a loved one lost due to preventable medical error, but the legal system also denies acknowledgment of that harm through damages for pain and suffering.
Plaintiff-side attorneys have framed the issue as both a deterrence problem and a moral one. Without the threat of civil liability, they argue, medical providers face reduced incentives to improve patient safety protocols.
Policy and Economic Implications
The repeal debate sits at the intersection of law, economics, and public health policy. Empirical data on malpractice litigation in Florida complicate the insurance industry’s dire predictions: filings have declined steadily over the past two decades, even as premium rates have stabilized.
Critics of the “floodgates” argument point to a 2023 report by the Florida Office of Insurance Regulation, which found no significant correlation between malpractice litigation frequency and premium spikes. They contend that the current system externalizes the cost of negligence onto victims and families while insulating providers from accountability.
From an economic standpoint, repeal could marginally increase insurer exposure but may also restore equilibrium in the civil justice system by ensuring that similarly situated wrongful death claimants; medical and non-medical alike;are treated equally under the law.
The Path Forward
As of this writing,( Oct.21, 2025) a Senate companion bill has not yet been filed. Nevertheless, with the House advancing HB 6003 by a 16–2 vote, momentum for reform is building. The upcoming 2026 session will likely determine whether Florida continues to stand as an outlier among states in restricting wrongful death remedies for medical negligence.
For policymakers, the question is less about litigation volume and more about justice architecture: should a legal system designed to redress harm permit a categorical exclusion of certain victims?
For practitioners; both in law and medicine, the stakes are equally high. Repeal would reshape Florida’s malpractice landscape, recalibrate the risk environment for healthcare providers, and potentially signal a broader retreat from the tort reform orthodoxy that has governed the state for more than three decades.
Conclusion
The fight over Florida’s “free kill” law encapsulates a deeper struggle over accountability, equity, and the moral purpose of civil justice. As Rep. Trabulsy prepares for another legislative round, the outcome may determine not just the fate of a statute but the direction of Florida’s broader approach to balancing patient rights against professional liability.
Whether the legislature will finally align the state’s wrongful death law with modern notions of fairness remains to be seen. But one thing is clear: the debate over §768.21(8) has become a referendum on what kind of justice Florida is willing to provide for the victims of medical negligence.
