FMRA’s Evidence-Based Case for a Clean Repeal of Florida Statute § 768.21(8)

Fact  After the Florida Supreme Court overturned caps on noneconomic damages, Florida’s average malpractice insurance premiums declined and are now at some of their lowest average levels (adjusted for inflation) since 2000, according to an average of medical liability insurance premiums derived from the Medical Liability Monitor (MLM) – considered to be the authoritative national source for malpractice premium data (see Figure 1).¹³ If damage caps were necessary to control malpractice premiums, a sustained increase would be expected following those decisions. Instead, premiums continued a downward trend.¹⁴

When lobbyists claim Florida has some of the highest malpractice insurance premiums in the nation, they omit critical context: First, inflation-adjusted Florida premiums, averaged across the three specialties reported by MLM, are less than half of their peak in 2005, and below the level in 1990.¹⁵ Second, inflation-adjusted payouts per physician, reported to the National Practitioner Data Bank (NPDB), are less than one-third of the average level of the 1990s.¹⁶ Third, the ratio of average medical malpractice premiums (from MLM) to payouts (from the NPDB) has soared over time, and reached a new record in 2024. This ratio is four times the ratio in the 1990s (Figure 2).¹⁷ Insurance companies are making supranormal profits, yet premiums remain high.

Additionally, Florida has always ranked among higher-premium states before, during, and after caps, and for the entire period the “Free Kill” law has been in effect, according to an historical comparative index of medical liability insurance premiums for the United States (see Table 1).¹⁸ The “Free Kill” law and damage caps did not prevent Florida from having comparatively high premiums. There is no evidence that these laws meaningfully affect malpractice insurance pricing.¹⁹

Premiums often rise and fall according to predictable insurance underwriting cycles, commonly referred to as “hard” and “soft” markets, fluctuating largely independent of tort law, according to academic studies.^20,21,22 During competitive soft markets, insurers suppress premiums to gain market share, often accepting reduced profits. When profitability declines too sharply, insurers increase premiums across the board, producing a hard market and renewed claims of crisis.^23,24 These cycles have occurred repeatedly for decades, including in states with strict caps and in states with no caps.^25,26

Researchers further identify multiple drivers of malpractice insurance pricing unrelated to damages law, including investment returns, reinsurance costs, insurer competition, underwriting practices, claim severity trends, and macroeconomic conditions, according to academic studies.³⁶ No credible research demonstrates that eliminating Florida’s loophole for wrongful-death liability for a narrow class of patients will cause increases in premiums.

Fact  This restriction applies uniquely to medical malpractice wrongful death cases and was designed to shield the healthcare industry from liability³⁷ by making fatal malpractice claims of certain patients economically unfeasible to pursue given the high cost of bringing such cases to court, even if families could find an attorney to work pro bono. No other wrongful death victims in Florida are limited to seeking only economic damages for wrongful deaths.³⁸

Economic damages are limited to quantifiable losses such as medical bills, lost wages, and funeral expenses.³⁹ For most patients affected by the “Free Kill” law – particularly young adults, retirees, seniors, and individuals with severe disabilities – these damages are minimal or nonexistent.

Malpractice wrongful death cases are among the most complex and expensive forms of civil litigation, requiring extensive medical record review, expert medical testimony, and specialized legal resources, costing tens to hundreds of thousands of dollars and often many years to pursue. When recovery is restricted to economic losses alone, the cost of litigation exceeds any possible recovery.

Attorneys are forced to decline these cases, not because negligence did not occur, but because the law makes access to the courts financially unattainable for these families. As a result, even the most serious instances of fatal medical negligence remain uninvestigated and unreported.

Fact  The “Free Kill” law suppresses both access to accountability and data, making speculative claims about future litigation inherently unreliable. Families barred from accessing the courts by Florida Statute 768.21(8) are also denied the pre-suit investigation and discovery process legally required to determine whether a malpractice claim is credible and supported by medical evidence.⁴⁰ Many deaths of suspected malpractice “Free Kill” patients are never meaningfully reviewed and, as a result, there is no way to estimate with confidence how many additional malpractice wrongful death cases might follow a repeal.

During the 2025 legislative session, healthcare lobbyists’ estimates of the number of additional annual lawsuits that would occur as a result of repeal increased dramatically as repeal legislation advanced: from “hundreds”⁴¹ of cases, to “at minimum […] 500,”⁴² and eventually to as many as 1,500 additional wrongful death claims⁴³ as the repeal bill approached the Governor’s desk. These cited figures were not accompanied by methodology, supporting data, or independent analysis.

That such estimates were inflated threefold as repeal neared final passage raises serious concerns about the use of speculative projections to influence policymaking. However, if these higher estimates are accurate, they would indicate the “Free Kill” law is concealing a serious patient safety and public health crisis that should be subject to independent investigation and judicial and legislative review.

Finally, past repeal bills were not retroactive: Alleged “Free Kill” malpractice deaths that occurred prior to the effective date of repeal would remain subject to the existing statutory bar, and those affected families would not gain the right to access to the courts. Any potential increase in litigation would be limited to future cases, undermining claims of an immediate or uncontrolled surge in filings.

Fact  In Florida, nuclear verdicts are rare, heavily filtered by post-trial reductions, and concentrated in catastrophic injury cases – not wrongful deaths – making them an unsound basis for maintaining a law that denies wrongful death victims’ access to the courts.

A “nuclear verdict” is a damage award exceeding $10 million. Data compiled by the Florida Justice Reform Institute (FJRI), a lobbying firm opposing a clean repeal of 768.21(8), identified 37 nuclear malpractice verdicts in Florida from 2014–2025.⁴⁴ Less than 25% (nine cases) were wrongful death cases. The large majority involved living plaintiffs who suffered catastrophic, permanent injuries.⁴⁵

Most malpractice cases are resolved out of court rather than jury trial, according to an academic study.⁴⁶ Of the relatively small percentage that proceed to verdict, the vast majority are decided in favor of the defense, according to a 2023 American Medical Association publication study of claims from 2016–2018.⁴⁷

Even when large verdicts occur, they frequently do not result in full payment. According to FJRI’s own malpractice nuclear verdict tracker, at least 43% of the tracked Florida malpractice nuclear verdicts have been settled, overturned, vacated, or reduced for various reasons, including due to a hospital’s sovereign immunity limits, as of early February 2026.⁴⁸ Additionally, because some defendants do not carry malpractice insurance – which is optional in Florida⁴⁹ – some verdicts are effectively uncollectible and therefore should have negligible impact on insurance rates. For example, a recent $100 million personal injury verdict in South Florida was characterized as a “symbolic verdict,” as the negligent doctor was uninsured.⁵⁰

Nuclear verdicts arise from rare, extreme misconduct, and not from a systemic problem warranting broad damage caps. Using a small number of outlier cases to justify across-the-board limits would punish all malpractice victims, including those with catastrophic injuries. Opposition lobbyists concede their cap proposal would impose the same cap “no matter the level or type of injury,”⁵¹ meaning profoundly different harms and death are treated alike. Given the wide spectrum of medical negligence, injuries, and loss, damages should be allowed to reflect the actual severity of the loss, rather than be arbitrarily limited for the benefit of the wrongdoer.

Fact  Following the state’s Supreme Court’s rulings overturning noneconomic caps damages as unconstitutional, Florida’s number of licensed, active physicians steadily increased, according to a review of the Florida Department of Health (DOH) Physician Workforce Annual Reports. Furthermore, there was no meaningful increase in physicians reporting plans to leave the state due to liability concerns or malpractice insurance rates, according to a review of those same reports since 2011 (see Table 2). That physicians did not leave the state and did not report a desire to leave Florida after two major court decisions affecting liability for all malpractice cases strongly suggests that the physician workforce is unlikely to be destabilized by a far narrower change that restores access to the courts for a limited group of previously excluded wrongful death victims.

• In its 2025–2026 first quarterly report, the DOH Division of Medical Quality Assurance (MQA) reported that “Florida’s health care workforce continues to grow steadily, keeping pace with the state’s expanding population. […] Florida is building a strong, well-prepared workforce to meet the health needs of its communities.”⁵² In its 2022 Physician Workforce Annual Report, DOH reported that during the previous 10 years, the number of physicians providing direct patient care increased 33.8% while the population increased just 13.4%.⁵³
• Since 2011, the percentage of physicians who reported plans to leave Florida due to liability concerns has steadily declined – from a high of 17.9 percent in 2011 to 3.21 percent in 2025, according to a review of DOH Physician Workforce Annual Reports since 2011.⁵⁴
• Similarly, the percentage of physicians citing malpractice insurance costs as a reason for their plans to leave the state has remained consistently low – between one and three percent over the past decade – and declined in the years following the Supreme Court rulings.⁵⁵

Florida is the only state with a “Free Kill” law.⁵⁶ Repealing it would bring Florida into alignment with other states that do not provide immunity for malpractice wrongful death based on marital and parental status. Given that many states operate under similar legal standards that repealing “Free Kill” would achieve, there is no evidence that repeal would make Florida an outlier or reduce its competitiveness in retaining physicians.

Fact  Obstetric patients do not fall within the category of individuals affected by the “Free Kill” law. The “Free Kill” law applies only in a narrow set of circumstances – specifically, when an unmarried patient, 25 years old or older, dies due to malpractice and has no children under the age of 25.⁵⁷ Patients receiving obstetric care are, by definition, pregnant, delivering a child, or have recently given birth.

Because obstetric care constitutes the core of OB practice,⁵⁸ repealing the “Free Kill” law is unlikely to have any significant impact on obstetric services, workforce decisions, or access to maternity care. The repeal bills restore legal accountability only for a limited group of non-obstetric patients who are currently denied access to the courts following fatal medical negligence. They do not alter the legal framework governing liability for pregnancy, childbirth, or delivery-related care.^59,60

Fact  Florida families can file complaints against physicians with the Florida Department of Health (DOH) and against hospitals or facilities with the Agency for Health Care Administration (AHCA); however, these administrative pathways to address dangerous doctors rarely result in meaningful accountability and are undermined by the limitations of the “Free Kill” law.^61,62

DOH disciplinary action is infrequent, slow, and often limited to minor sanctions, such as letters of concern, modest fines, or continuing education requirements, even in cases involving serious patient harm, according to local news reports and a Health News Florida investigative report.^63,64,65 A five-year review of DOH annual reports shows that, on average, probable cause for disciplinary action is found in only about 3.5 percent of the thousands of complaints received.⁶⁶ Physicians are often allowed to continue practicing without restriction, and families have no right to damages, discovery, or transparent fact-finding through the administrative process.^{67,68,69,70,71}

• In one widely reported 2022 South Florida case, a physician found liable for catastrophic injury of a newborn had previously been linked to 14 serious injuries and six patient deaths, including two newborns, yet remained able to practice. When asked why the Florida Board of Medicine had not revoked the physician’s license earlier, a former chair of the Board explained that “for the board to revoke a person’s license is very difficult because there are so many opportunities for them to appeal and continue to practice under those appeals.”⁷²
• In 2019, another former chair of the Board of Medicine acknowledged that the Board “functions as judges, not policemen, not investigators,” and that “[i]n most of those [malpractice] situations, it’s up to the trial attorneys to make sure those cases are forwarded to the Department of Health.”⁷³ However, no trial attorney can afford to take “Free Kill” victims’ cases, so most of these suspected malpractice deaths will not be investigated.

The “Free Kill” law also undermines the state’s own physician-discipline framework, the “Three Strikes” law, which was enacted to remove dangerous doctors from practice.⁷⁴ Under this law, a physician may accrue a “strike” through one of three mechanisms:

• A court finding of medical malpractice
• Binding arbitration
• A final administrative finding (such as DOH discipline)⁷⁵

Because Statute 768.21(8) bars “Free Kill” families from pursuing malpractice claims in court, two of the three statutory pathways for accruing a strike – court judgments and arbitration – are unavailable in “Free Kill” cases. As a result, physicians whose negligence caused “Free Kill” patient deaths are not only immune from civil liability but also insulated from the administrative disciplinary mechanisms the state relies on to identify and remove dangerous repeat offenders.

In this way, the “Free Kill” law not only limits access to the court for certain victims and their families, but it also actively weakens Florida’s patient-safety and physician-oversight systems, allowing patterns of negligence to remain hidden and uncorrected.

Fact  Malpractice premiums represent an exceedingly small share of total U.S. healthcare spending, estimated at approximately 0.03% when measured as premiums alone, and up to about 2.4 percent, even when broader medical liability system costs are included.^76,77 Even if malpractice premiums were to increase modestly, they are too small of a proportion of overall costs to drive a meaningful rise in the cost of healthcare. A limited expansion of access to the courts for “Free Kill” families would be highly unlikely to have a significant impact on overall healthcare spending or costs.

Moreover, rather than reducing costs, the “Free Kill” law redistributes them – shifting the financial consequences of medical negligence away from negligent actors and onto taxpayers and the insured. Medicare, Medicaid, and private insurers require a court determination of malpractice to recover payments associated with negligent care that caused a patient death.⁷⁸ Because “Free Kill” deaths are blocked from the courts, taxpayer-funded and private insurers are unable to recover meaning that taxpayers and insurance customers bear the expense of treatment that cause patients’ wrongful death.

Fact  Florida has robust statutory safeguards designed to screen out frivolous medical malpractice claims; repealing the “Free Kill” law will not weaken or eliminate these protections.

Before any medical malpractice lawsuit may be filed, Florida Statute 766.203 requires a mandatory 90-day pre-suit investigation and notice process.⁷⁹ This process includes a thorough review of medical records, consultation with qualified medical experts, and a written, sworn opinion from a physician in the same or similar specialty stating that there is a reasonable basis to believe the defendant breached the standard of care and caused the injury or death. Attorneys must incur the cost of this investigation before filing suit.

These requirements create significant financial and procedural barriers to filing unsupported claims. Repealing the “Free Kill” law does not weaken or eliminate these protections.

Fact  Under existing Florida law, only the deceased person’s personal representative may file a wrongful death lawsuit.⁸⁰ Family members cannot independently bring claims. If the decedent did not designate a personal representative before their death, a probate court appoints one according to established legal standards in Florida Statute 733.301.⁸¹

Florida Statute 768.18 limits recoveries in wrongful death cases to specific, defined beneficiaries.⁸² These include the surviving spouse; the decedent’s children (minor children, and adult children only if there is no surviving spouse); the decedent’s parents (if there is no surviving spouse or children); and, in limited circumstances, other blood relatives who were financially dependent on the decedent.⁸³ Florida Statute 768.21 authorizes courts to exclude survivors and to limit or deny noneconomic damages based on the nature and quality of the relationship.⁸⁴ These long-standing judicial safeguards would remain fully intact if the 768.21(8) exclusion is repealed.