If you’ve followed the news over the past year and a half, you’ve seen the headlines. Two legislative sessions, a governor’s veto, and a lot of confusion about what families can actually recover when medical negligence causes serious injury or death in Florida. Clients ask us about this constantly, and the honest answer is that the law hasn’t changed, even though it came close twice. Here’s where things stand as of September 2026.
Is there a cap on pain and suffering damages in Florida medical malpractice cases?
No. Florida once capped non-economic damages (pain and suffering, grief, loss of companionship) in medical malpractice cases under a 2003 law, section 766.118, Florida Statutes. Those caps are gone. The Florida Supreme Court struck down the wrongful death cap in Estate of McCall v. United States (2014) and the personal injury cap in North Broward Hospital District v. Kalitan (2017). In plain terms, the court held that limiting what the most seriously harmed patients could recover, while leaving smaller claims untouched, violated the Florida Constitution’s equal protection guarantee. The Legislature has never re-enacted a cap that survives those rulings.
So in a case against a private hospital or physician, the jury decides what pain and suffering are worth. There’s no ceiling written into the law.
One important exception: claims against public hospitals and state-employed providers fall under Florida’s sovereign immunity law, section 768.28. Recovery there is limited to $200,000 per person and $300,000 per incident unless the Legislature passes a special claim bill. That’s why one of the first things we do in any medical negligence case is figure out exactly who the defendant is. In Miami-Dade and Broward, where public hospital systems treat a large share of patients, that answer can dramatically change a case’s value.
What is Florida’s “Free Kill” law?
Florida is the only state in the country with a law like section 768.21(8). It bars certain family members from recovering non-economic damages when a loved one dies because of medical negligence.
Here’s who the law shuts out. If the person who died was 25 or older, their parents can’t recover for mental pain and suffering. If the person who died was a parent, their children who are 25 or older can’t recover either. And if the person who died was unmarried with no children under 25, the harsh result is that no one can recover non-economic damages at all. Critics have given it a grim nickname: the “free kill” law.
The law doesn’t wipe out every claim, though. A surviving spouse, any child under 25, and the parents of someone who died before turning 25 keep their full claims. The estate can still pursue economic damages, including lost net accumulations, medical expenses, and funeral costs. And the restriction applies only to medical negligence. The same family would recover fully if the death came from a car crash or a fall. Click here to read more about this ruling.
Did Florida repeal the free kill law?
Not yet, despite two serious attempts.
In 2025, the Legislature passed a clean repeal (HB 6017) by overwhelming margins: 104-6 in the House and 33-4 in the Senate. The Senate rejected an amendment that would have added damage caps by a single vote. Governor DeSantis vetoed the bill on May 29, 2025, pointing to the absence of caps and the potential effect on malpractice insurance premiums. No override was attempted.
The 2026 session brought a second try. The House passed HB 6003 on January 15, 2026, by a narrower 88-17 vote. But the Senate companion, SB 1700, never received a committee hearing, and the bill died when the session adjourned in March. A separate proposal to impose a $750,000 cap on non-economic damages (SB 248) also went nowhere.
Sponsors have said they’ll refile for the 2027 session, and with a new governor taking office in January 2027, the veto math may look different. But nothing has changed today, and no one should plan a claim around a law that doesn’t exist yet.
What should families do right now?
Three things matter most.
First, your claim is governed by the law as it reads now, not as it might read next year. Florida gives you two years to file a medical malpractice claim under section 95.11(5)(c), and a four-year outer deadline called the statute of repose. Those clocks don’t pause while Tallahassee debates. If you lost a family member to suspected medical negligence, have the claim evaluated promptly, even if you think the free kill law shuts you out. Economic and estate claims may still be worth pursuing, and sometimes the facts support an ordinary negligence theory that isn’t subject to the malpractice restriction.
Second, Florida’s pre-suit requirements are unforgiving. Before a malpractice lawsuit can be filed, Chapter 766 requires a 90-day investigation period, a formal notice of intent, and a corroborating affidavit from a qualified medical expert. A defect in any of these steps can end a case no matter how strong the merits are.
Third, the rules on medical billing evidence changed in 2023. Although that year’s tort reform law mostly exempted medical malpractice, section 768.0427 does apply to malpractice cases filed after March 24, 2023. Juries now see the amounts actually paid for medical care rather than the amounts billed, which changes how both economic and non-economic damages get presented at trial.
Talk to us before the deadlines decide for you
Hoffman, Larin & Agnetti has represented injured patients and grieving families across Florida for decades. We handle medical malpractice cases on a contingency fee basis, which means you pay nothing unless we recover for you, and your consultation is free.
Call us at 305-653-5555, text us at 305-653-1515, email us at [email protected], or fill out the form on the right, and our attorneys will reach out to you directly.
We’ll keep monitoring Tallahassee and update subscribers as the 2027 session approaches.
Frequently Asked Questions
1. Is there a limit on what a jury can award for pain and suffering in a Florida medical malpractice case?
No. The Florida Supreme Court struck down the statutory caps in 2014 and 2017, and the Legislature hasn’t replaced them. The exception is claims against public hospitals and government-employed providers, which sovereign immunity limits to $200,000 per person and $300,000 per incident absent a claim bill.
2. Was Florida’s free kill law repealed in 2026?
No. The House passed a repeal (HB 6003) in January 2026, but the Senate version never got a hearing and the bill died in March. Section 768.21(8) remains in effect.
3. Who can still recover pain and suffering damages when medical negligence causes a death?
A surviving spouse, children under 25, and the parents of a decedent who was under 25. The estate can also recover economic damages regardless of the family’s ages.
4. How long do I have to file a medical malpractice claim in Florida?
Generally, two years from when the malpractice was or should have been discovered, with a four-year outer limit. You must complete strict pre-suit investigation and notice requirements under Chapter 766 first, so it’s important to start well before the deadline.
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*This article is provided for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. Case outcomes depend on specific facts. Please consult an attorney regarding your individual situation.*
