medical negligence - Jeffrey P. Gale, P.A.

Jeffrey P. Gale, P.A. // Nursing Home Is Not Itself A Health Care Provider For Purposes Of Florida Statute 766.102

Jeffrey P. Gale, P.A. — Tue, 16 Sep 2025 19:16:33 GMT

Under Section 400.022, Florida Statutes (2025), nursing home residents are guaranteed specific rights. Licensed facilities must publish these rights and ensure that residents are treated in accordance with them. If a facility violates these rights and a resident suffers injury or death as a result, the facility may face legal proceedings.

Although nursing homes are obligated to provide care and services to their residents, they are not themselves considered “health care providers” under section 766.102, Florida Statutes (2025). See NME Properties, Inc. v. McCullough, 590 So. 2d 439 (Fla. 2nd DCA 1991). This can prove consequential in legal proceedings as, among other things, claims brought under 766.102 are subject to onerous presuit requirements such as expert affidavits, notice, investigation, and informal discovery. See section 766.106.

Most harmful violations in nursing homes stem from the ordinary negligence of nonprofessional employees. Claims arising from such violations are not governed by Chapter 766, nor are claims against licensed professionals when the exercise of professional skill or judgment is not implicated.

Although a nursing home is not itself considered a health care provider under section 766.102, it may nonetheless be held vicariously liable for the acts of certain agents or employees who are. For example, the facility likely employs nurses licensed under chapter 464. Under the doctrine of respondeat superior, a facility may therefore be liable under the heightened professional standard of care when such an agent, actively involved in the incident, is rendering medical care or services.

Florida’s Wrongful Death Act bars recovery for lost parental companionship, instruction, and guidance, as well as for the mental pain and suffering of adult children over the age of 25, when the parent’s death results from medical malpractice. See section 768.21(8). This represents a unique carve-out from traditional common-law damages, applicable only in medical malpractice cases. It reflects a legislative policy choice rather than a principled public policy determination and is often referred to as Florida’s “Free Kill” law.

If a nursing home resident’s death results from ordinary negligence rather than medical negligence, the limitations of the “Free Kill” law do not apply.

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Contact us toll free at 866-785-GALE or by email (jgale@jeffgalelaw.com) for a free, confidential consultation to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

While prompt resolution of your legal matter is our goal, our approach is fundamentally different. Our clients are “people” and not “cases” or “files.” We take the time to build a relationship with our clients, realizing that only through meaningful interaction can we best serve their needs. In this manner, we have been able to best help those requiring legal representation.

Jeffrey P. Gale, P.A. // Florida’s “Free Kill” Law: A Legal Loophole That Still Denies Grieving Families Justice

Jeffrey P. Gale, P.A. — Tue, 10 Jun 2025 16:29:57 GMT

Since 1990, Florida has enforced a statute commonly referred to as the “Free Kill” law. Codified at Section 768.21(8) of the Florida Wrongful Death Act, this provision creates a glaring exception in an otherwise remedial framework intended to support grieving families.

The legislative intent behind the Wrongful Death Act, as stated in Section 768.17, is clear:

“It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.”

From car crashes and construction accidents to defective products and medical malpractice, wrongful death claims arise in countless tragic ways. When negligence causes a death, Florida law generally allows surviving family members to recover damages — including for mental pain and suffering, often the most devastating aspect of such a loss.

But Section 768.21(8) carves out a critical exception: If the death is caused by medical negligence, parents of adult children (defined under Section 768.18(2) as those age 25 or older) and adult children of deceased parents are barred from recovering non-economic damages — no compensation for grief, anguish, or loss of companionship.

Yes, you read that correctly. If a doctor’s negligence kills your elderly parent or your adult child, Florida law says you’re entitled to nothing for your emotional loss. That’s why Section 768.21(8) has earned the nickname: “The Free Kill Law.”

The Insurance Myth

Proponents of the law claim it helps keep medical malpractice insurance rates down. But studies have not substantiated those claims. In fact, in McCall v. United States, 134 So. 3d 894 (Fla. 2014), the Florida Supreme Court struck down arbitrary damage caps in medical malpractice cases, finding they violated equal protection. The Court specifically rejected the idea that such caps meaningfully reduce insurance premiums or promote physician retention.

A Repeal Effort Thwarted — Again

Over the years, bipartisan efforts to repeal the “Free Kill” law have steadily gained traction. During the 2024 legislative session, lawmakers introduced multiple bills to eliminate the unjust provision. Some were clean, straightforward repeal proposals. Unfortunately, opposition — fueled by powerful healthcare and insurance industry lobbyists — once again derailed reform.

One high-profile example: SB 248, sponsored by Sen. Corey Yarborough (R), sought to repeal Section 768.21(8), but only if unconstitutional damage caps (struck down in McCall) were reinstated. That bill failed, but not before it distracted from genuine repeal efforts — yet another missed opportunity.

Then, in the 2025 legislative session, both the House and Senate passed a full repeal of the Free Kill law by veto-proof majorities. But Governor Ron DeSantis vetoed the bill. Despite having the votes to override the veto, Republican legislators declined to act.

The result? The law remains intact. Some believe this was a calculated move — allowing lawmakers to appear supportive of repeal while ensuring the law stayed in place, placating key political donors. With Governor DeSantis term-limited, his veto came at little political cost.

Real Families, Real Grief

At our firm, not a week goes by without a call from someone devastated by this law — most often adult children grieving the preventable loss of a parent due to medical error. For many, we are not the first law office to deliver the heartbreaking news: Florida law offers them no remedy.

It’s a painful conversation every time. We encourage callers to reach out to their elected officials and demand change. Most say they will. Whether lawmakers will finally listen remains to be seen.

Bottom Line: Until Florida repeals the “Free Kill” law, the state’s legal system will continue to deny justice to countless families — especially those who lose elderly parents to preventable medical negligence. The fight isn’t over, but the time for action is long overdue.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.

Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.

DISCLAIMER: This information provided by Jeffrey P. Gale, P.A. is for informational purposes only and is intended to be used as a non-legal guide prior to consultation with an attorney familiar with your specific legal situation. It should not be considered legal advice or counseling. No such legal advice or counseling is either expressly or impliedly intended. This information is not a substitute for the advice or counsel of an attorney. If you require legal advice, you should seek the services of an attorney.

Jeffrey P. Gale, P.A. // Proxy Republican Legislators Kill Efforts to Abolish Florida’s “Free Kill” Medical Malpractice Law

Jeffrey P. Gale, P.A. — Wed, 17 Apr 2024 21:08:13 GMT

Since 1990, Florida has maintained a statute that has come to be commonly referred to as the “Free Kill” law. The statute, section 768.21(8), is located in the damages portion of the Wrongful Death Act.

The legislative intent of the Wrongful Death Act is set forth in section 768.17:

It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer.

From motor vehicle crashes, construction accidents, defective products, and even medical negligence, wrongful death is caused in countless ways. The Wrongful Death Act allows the survivors of the decedent to recover from the wrongdoer once fault is established. Included within these remedies is the right to recover for mental pain and suffering. 768.21(8) is the exception to the rule.

Under 768.21(8), when a death is caused by medical negligence, mental pain and suffering damages (known as non-economic losses) are not recoverable by a parent for the loss of an adult child or by an adult child for the loss of a parent. 768.18(2) provides that a child 25 years of age or older is an adult child under the Act.

Yes, you read that right. Hence, the reason why 768.21(8) has come to be known as the “Free Kill” law.

Proponents of the law argue that its purpose is to keep medical malpractice insurance rates in check. Studies do not back up the rhetoric. In McCall v. United States, 134 So. 3d 894 (Fla. 2014), the Florida Supreme Court struck down arbitrary damage caps in medical malpractice cases based on the same proposition, debunking arguments from medical malpractice insurance lobbyists and organized medicine.

A groundswell of support has formed over the years to repeal the “Free Kill” law. In the 2024 Florida legislative session, various bipartisan bills were put forward to wipe the law off the books. Some no-strings-attached clean bills designed to abolish the law were proposed. Unfortunately, legislators with strong support from the lobbyists in the health care and insurance industry came forward to derail those efforts. SB 248, put forward by state Sen. Corey Yarborough (R), gained traction among Republicans. It conditioned abolishment of the “Free Kill” law on reinstating unconstitutional damage caps — see McCall — in all medical malpractice cases. Thankfully, the bill was defeated, but the distraction resulted in a lost opportunity to eliminate 768.21(8). Maybe next year.

Not a week goes by where our office does not receive an inquiry from a survivor frustrated by the “Free Kill” law hoping for a miracle. The most frequent inquiries come from the adult children of elderly parents. Oftentimes, we are not the first law firm to have to break the bad news. Not that it’s any consolation, but we do tell them to contact their representatives to express displeasure. They all say they will.

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Contact us at 305-758-4900 or by email (jgale@jeffgalelaw.com and kgale@jeffgalelaw.com) to learn your legal rights.